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 Jfe
 
 THE LAW 
 
 OF 
 
 Collateral and Direct Inheritance, Legacy 
 and Succession Taxes 
 
 EMBRACING 
 
 ALL AMERICAN AND MANY ENGLISH DECISIONS, WITH 
 FORMS FOR NEW YORK STATE, AND AN APPEN- 
 DIX GIVING THE STATUTES OF 
 
 NEW YORK OHIO 
 
 NEW JERSEY CONNECTICUT 
 
 PENNSYLVANIA MARYLAND 
 
 MASSACHUSETTS CALIFORNIA 
 
 MAINE ILLINOIS 
 
 SECOND EDITION 
 
 By BENJ. F. DOS PASSOS 
 
 Late Assistant District Attorney New York County, N. Y. 
 
 St. Paul, Minn. 
 
 WEST PUBLISHING CO. 
 
 1895
 
 Copyright, 1895, 
 
 BY 
 
 BENJ. F. DOS PASSOS. 
 
 /fr*l5
 
 PREFACE TO SECOND EDITION. 
 
 Since the publication of the first edition of this work, in 
 September, 1890, the views which I then expressed in the 
 preface and body of the book as to the efficacy of the inherit- 
 ance tax have been most strongly confirmed. 
 
 The apparently direct effect of the publication of the stat- 
 utes and decisions upon this subject has been to introduce this 
 system of taxation, for the first time, in the states of Maine, 
 Massachusetts, Ohio, Illinois, California, Connecticut, and 
 New Jersey; and the system has also recently been inaugu- 
 rated in some of the Canadian provinces and in the Austral- 
 ian colonies. In addition to the states just referred to, to- 
 day there are in force, in the following states, statutes di- 
 recting and enforcing the collection of the collateral or direct 
 inheritance tax, viz.: New York, Pennsylvania, Maryland, 
 Virginia, West Virginia, North Carolina, Delaware, and 
 Tennessee. In Minnesota, so anxious were the people to 
 have this system that, when the law enacted by the legisla- 
 ture was declared unconstitutional, the constitution was im- 
 mediately amended by a provision providing for the passage 
 of a proper law on the subject. It requires nothing more 
 than ordinary perception to foretell the near adoption of 
 these laws in all those states of the Union where they do 
 not now exist. 
 
 The successful application of the system has been strongly 
 illustrated in the state of New York, where, until 1890, 
 there existed only a collateral inheritance tax. I then 
 called attention to the importance of a small tax on prop- 
 erty passing to lineal or direct heirs, and in 1892 the then 
 
 LAW INHER. (iii) 
 
 72940?
 
 IV PRKFACE TO SECOND EDITION. 
 
 existing law was repealed, and a system adopted imposing 
 a small tax of one per cent, upon lineal heirs and others, and 
 five per cent, upon collaterals. From a financial stand- 
 point, the success of the system of collateral and direct in- 
 heritance taxation is most powerfully enforced. In nine 
 years (1885 to 1894) the state of New York has collected, 
 at a very small cost, over $11,000,000 from this system alone. 
 Of this amount over fifty per cent, or $6,083,571, was collect- 
 ed in the city of New York, and $996,272.77 in the county of 
 Kings. 1 The state received from this tax, for the year just 
 closed (September 30, 1895), $2,126,875, an increase over 
 1894 of $437,940.41. The largest amount of transfer taxes 
 was received by the state in 1893, when four estates paid 
 $1,096,036.97, and fifteen estates paid more than half of the 
 entire amount collected that year. The largest amount 
 received from any single estate in the state of New York, 
 since the law went into effect, is the sum of $500,000, or there- 
 abouts, which was paid by the estate of Jay Gould. 
 
 Much, if not all, of the credit for this condition of the sys- 
 tem is due to the Honorable James A. Roberts, state comp- 
 troller, and to his deputy, Col. William J. Morgan. Not 
 only has the state comptroller been successful with this tax, 
 but he has also made great progress with the corporation 
 tax, and has thus put the balance on the right side of the 
 "people's ledger." 
 
 If we cross the main to Great Britain, we find that the sys- 
 tem there is one of the most important in the kingdom. 
 It is also a tax of importance among the other nations of 
 Europe. A large proportion of English revenue is collected 
 from what are commonly called "death duties," consisting of 
 taxes on probates, legacies, successions, and estate duties; 
 and by the "finance act," the latter being a new tax, enacted 
 
 i Report of James A. Roberts, State Comptroller, Albany, 1S05, p. 
 392.
 
 PREFACE TO SECOND EDITION. V 
 
 in 1894, a further duty of one per cent, has been imposed 
 upon real estate and personal property of the value of £10,000 
 and upwards. This revenue has always been large. It is 
 now said to amount to over £13,000,000 annually. 2 But the 
 tax is evidently a great burden, as it falls principally upon 
 land; whereas, under the American statutes, with some 
 exceptions, the tax generally falls upon personalty, which as 
 a rule escapes general taxation. Protest against the English 
 system has recently been made by many prominent English- 
 men, notably by the Earl of Winchelsea and Nottingham. 3 
 
 One great fault with the law in New York and some 
 other states is that too many so-called charitable institutions, 
 including religious corporations and many others, are ex- 
 empted from this tax, especially in New York under an act 
 passed in 1890. 4 By a brief examination of this statute and 
 of the text under the chapter on "Exemptions," this fact will 
 be readily ascertained. 5 These exemptions should be limited 
 to well-defined public charities, and the revenue of the state 
 would largely increase. 
 
 Another suggestion occurs in connection with the inherit- 
 ance tax which may lead to the repeal of the frequently 
 abused personal property tax. This could be accomplished 
 by a small increase in the rate of the inheritance tax. In 
 consideration of this repeal, the state would be justified in 
 dividing some equitable proportion of the inheritance tax 
 among the different counties in proportion to their respective 
 contributions thereto. If this rule were to prevail, the city 
 of New York should have, on certain occasions, a handsome 
 return from the state treasury, and, with this compensation, 
 no regret would be expressed for the repeal of the odious tax 
 on personal property. In the appendix I have included 
 
 2 Chapter 1, § 4, p. 11, note 12. 
 
 s See North Am. Rev. Jan., 1895, p. 95. 
 
 * Chapter 553, p. S3. 
 
 e Page 92 et seq.
 
 \ 
 
 Vi PREFACE TO SECOND EDITION. 
 
 the statutes of ten of the most prominent states, with amend- 
 ments to 1895, viz.: New York, New Jersey, Pennsylvania, 
 Massachusetts, Maine, Ohio, Connecticut, Maryland, Cali- 
 fornia, and Illinois; also, forms for use under the New York 
 statute. 
 
 In conclusion I respectfully submit this book to the profes- 
 sion and the public for such just and fair criticism as it may 
 
 merit. 
 
 BENJ. F. DOS PASSOS. 
 
 New York City, N. Y., Nov. 1, 1895.
 
 PREFACE TO FIRST EDITION. 
 
 The subject of general taxation, for state and govern- 
 mental purposes, forms, undoubtedly, one of the leading 
 questions of the day. 
 
 What property, what persons or corporations, shall be 
 taxed; when, where and how taxes shall be levied and col- 
 lected, are problems which have already consumed much of 
 the time, and perplexed the thoughts of many leading law- 
 yers, statesmen and economists in this country. 
 
 But no satisfactory, uniform, logical system has as yet 
 been adopted — I might say, conceived. 
 
 Standing alone, as it were, upon its own foundations, 
 based upon grounds incontrovertible, the taxation compre- 
 hensively known in this country as the "collateral inherit- 
 ance tax," seems to have evoked the sanction of all classes 
 of writers and thinkers who have considered the question. 
 
 After a person is dead, and no longer capable of directing 
 or controlling his wealth, the state, in accordance with one 
 of the fundamental principles of social organization, steps 
 in, continues the ownership, and permits the owner to desig- 
 nate either his direct or collateral heirs, or even a total 
 stranger to his blood, to receive his inheritance. Or, if he 
 should die without a written testament, it practically accom- 
 plishes the same results through general statutes of descent 
 and distribution, which devolve the property of the intestate 
 upon his direct or collateral heirs. 
 
 While it has been stoutly questioned by some theorists, 
 whether, when a man dies, and has neither the power to con- 
 trol nor the necessity to use his property, it should not 
 
 LAW INHEB. (Vli)
 
 Vlll PREFACE TO FIRST EDITION. 
 
 wholly revert to the state, the argument cannot be treated 
 as being of much practical importance. 
 
 The course of all civilized nations has definitely settled 
 the question in favor of continuing the ownership. 
 
 But, as the state becomes the agent, instrument, or power, 
 for distributing the wealth of the deceased, it seems to be 
 conceded, upon the best possible grounds, that, for this 
 service, it should levy a tax upon the property devolving 
 upon the heirs. 
 
 While the argument applies almost with equal force to 
 inheritances by direct heirs, and it has been so extended in 
 England and by continental nations, in the few American 
 states which have so far adopted this principle of taxation, 
 the legislation has confined the tax to those cases where 
 the property eventually devolves upon collateral heirs and 
 strangers to the blood, turning over the property, in solidn, 
 to the direct heirs, unincumbered by any tax. 
 
 Considering the support which this tax has received from 
 writers and judges, and the manifestly equitable grounds 
 upon which it rests, it is quite surprising that it has not been 
 adopted in all of the states of the Union. Yet, the fact is, 
 that the collateral inheritance tax exists in about nine states 
 only, all the federal statutes imposing the succession and 
 legacy taxes being repealed. It was first introduced by the 
 legislature of Pennsylvania in 1826. Her example was fol- 
 lowed by Louisiana in 1828, where the tax was, however, 
 restricted to alien heirs, and subsequently statutes were 
 passed in Virginia in 1844; North Carolina in 1846; Mary- 
 land, 1864; Delaware, 1869; New York, 1885; West Vir- 
 ginia, 1887, and finally in Connecticut in 1889. 
 
 But there seems to be little doubt that it will eventually 
 become a law in all of the states. 
 
 A careful study of the principles and decisions established 
 by these collateral inheritance tax laws, as well as a some- 
 what extended practical experience in connection therewith,
 
 PREFACE TO FIRST EDITION. IX 
 
 convinces me that within a very short period the legislators 
 of the different states will be called upon to consider, inter 
 alia, three questions in connection with this tax: 
 
 First. — Whether the tax, which is now confined to col- 
 laterals and strangers to the blood, should not be extended 
 to inheritances and distributions to direct heirs; whether, in 
 every case, where a person receives property by reason of, 
 or flowing from the death of another, it is not the duty, as 
 well as the policy of the state, to levy a tax upon the in- 
 heritance. As I have intimated, the reason of the law ap- 
 plies as forcibly to direct as to collateral heirs; such a tax 
 has been most successfully imposed in England; it is one 
 easily levied and collected, and if the law be properly ad- 
 ministered the tax will produce a very handsome revenue to 
 each of the states that deem it good policy to enact it. 
 
 Second. — Another question will relate to exemptions from 
 the tax by ecclesiastical, eleemosynary and charitable insti- 
 tutions. A careful consideration of this subject leads me 
 to believe that such exemptions should be most strictly cur- 
 tailed and limited, if not altogether abolished by constitu- 
 tional provision. Practically two states only countenance 
 them, New York and Connecticut. Such exemptions, unless 
 carefully restricted to charities of the almshouse class or for 
 purely public purposes, impair the efficiency and fairness 
 of any system of taxation, and it is probably better that the 
 state should make a direct gift to charitable organizations 
 instead of permitting it to be received in the form of an ex- 
 emption. 
 
 Third. — But the most important question will occur in 
 respect to the amount and manner of imposing the tax. 
 Should there not be a law creating a graduated or scaling 
 tax, by which the small inheritance shall be made to bear 
 a small burden, and the tax gradually increased, so that 
 when the state comes to the distribution of large estates,
 
 X PREFACE TO FIRST EDITION. 
 
 the distributees should be made to pay back to the people 
 a fair and substantial contribution for the protection which 
 the state has afforded the possessors in accumulating and 
 preserving colossal fortunes? A graduated tax would not 
 dwarf individual ambition, genius or exertion, nor could it 
 be successfully maintained that such a change was social- 
 istic or communistic in principle. 
 
 The performance of official duties in the district attorney's 
 office of the county of New York in connection with the en- 
 forcement of this law, and the fact that no treatise exists on 
 the subject in this country, induced me to believe that I 
 might, in an humble way, perform some service to the public 
 and to the profession by collecting and collating all the 
 various decisions and statutes upon this important subject. 
 This I have conscientiously endeavored to do, and I now 
 respectfully submit my work for fair and legitimate criti- 
 cism. 
 
 BENJAMIN F. DOS PASSOS. 
 New York, September, 1890.
 
 TABLE OF CONTENTS. 
 
 ADDENDA ET CORRIGENDA. 
 
 (Page xix.) 
 
 LIST OF AUTHORS AND ARTICLES. 
 
 (Page xxi.) 
 
 CHAPTER I. 
 
 HISTORY OF COLLATERAL AND DIRECT INHERITANCE, 
 LEGACY, AND SUCCESSION TAXES. 
 
 1. 
 
 Reasons for Such Taxes. 
 
 2. 
 
 The Tax Defined. 
 
 3. 
 
 The Roman Law. 
 
 4. 
 
 Succesi 
 
 sion and Legacy Taxes in England. 
 
 5. 
 
 The American Statutes. 
 
 
 (a) 
 
 Pennsylvania. 
 
 
 (t» 
 
 Louisiana. 
 
 
 (c) 
 
 Maryland. 
 
 
 (d) 
 
 Virginia. 
 
 
 (e) 
 
 North Carolina, 
 
 
 (f) 
 
 Delaware. 
 
 
 (g) 
 
 Connecticut. 
 
 
 (h) 
 
 West Virginia. 
 
 
 0) 
 
 New York. 
 
 
 0) 
 
 Maine. 
 
 
 (k) 
 
 Massachusetts. 
 
 
 (1) 
 
 New Jersey. 
 
 
 (m> 
 
 Ohio. 
 
 
 (n) 
 
 California. 
 
 
 (o) 
 
 Tennessee. 
 
 
 (P) 
 
 Illinois. 
 
 
 (Q) 
 
 Minnesota. 
 
 
 (r) 
 
 Proposed Legislation In Other States. 
 
 
 LAW INHEB. (Xi)
 
 Xll TABLE OF CONTENTS. 
 
 § 6. Canadian Statutes. 
 
 (1) Quebec. 
 
 (2) Ontario. 
 
 (3) Nova Scotia. 
 
 (4) Manitoba. 
 
 (5) British Columbia. 
 
 CHAPTER II. 
 
 NATURE OF TAX AND ITS CONSTITUTIONALITY. 
 
 7. General Power of State over Taxation. 
 
 8. Collateral, Direct, or Inheritance Tax is upon the Privilege 
 
 of Succession to Property. 
 
 9. Nature of Tax in New York, under Act of 1892. 
 
 10. A Tax upon a "Commodity" in Massachusetts 
 
 11. Under the Constitution of Minnesota. 
 
 12. Under the Federal "Income Tax" of 1894. 
 
 13. Not a Property Tax. 
 
 14. Not a Direct Tax. 
 
 15. Taxing Foreign Real Estate— When Void as Direct Tax. 
 
 16. As to Being a General or Special Tax Law. 
 
 17. Not a Poll Tax. 
 
 18. As to Being an Equal and Uniform Tax. 
 
 19. Double Taxation. 
 
 20. Not a Taking of Private Property, etc 
 
 21. Need not State Object of Tax. 
 
 22. As to Notice and Hearing. 
 
 23. Due Process of Law not Violated. 
 
 24. As to Being Retroactive and Ex Post Facto. 
 
 25. Not a Tax upon Exports or Commerce. 
 
 26. Conflicting with Treaties and Alien Rights. 
 
 27. Government Bonds and State Securities. 
 
 28. United States and Municipalities— Legacies to— Taxable. 
 
 29. Legatee's or Owner's Domicile as to Personal Property and 
 
 its Situs. 
 
 30. Exemptions — When Constitutional. 
 81. General Questions as to Jurisdiction.
 
 TABLE OF CONTENTS. Xlll 
 
 CHAPTER III. 
 
 EXEMPTIONS. 
 
 32. Taxation the General Rule. 
 
 33. Policy of Inheritance, Legacy, and Succession Tax Laws. 
 
 34. An Enumeration of Statutory Exemptions. 
 
 (a) New York. 
 
 (1) Under General Tax Laws. 
 
 (2) Collateral Heirs under Acts 1S87 and 1892. 
 
 (3) Direct or Lineal Heirs— Act 1892. 
 
 (4) Religious and Other Corporations— Act 1890. 
 
 (b) Pennsylvania. 
 
 (c) Maryland. 
 
 (d) Virginia. 
 
 (e) West Virginia. 
 
 (f) Delaware. 
 
 (g) Connecticut, 
 (h) North Carolina, 
 (i) California. 
 
 (j) Maine, 
 (k) Massachusetts. 
 (1) New Jersey, 
 (m) Ohio. 
 
 (1) Collateral Heirs-Act 1893. 
 
 (2) Direct or Lineal Heirs— Act 1894. 
 (n) Tennessee. 
 
 (o) Illinois, 
 (p) Minnesota. 
 
 35. Charitable, Religious, and Other Corporations and Objects. 
 
 36. Foreign Corporations and Governments. 
 
 37. Adopted Children— Mutually Acknowledged Relation of Par- 
 
 ent and Illegitimate Children, etc. 
 
 38. Widows, and Husbands of Deceased Daughters. 
 
 39. Next of Kin, Lineal and Lawful Descendants. 
 
 40. Aliens, Foreign Legatees, and Nonresidents. 
 
 41. What Estates or Interests Taxable — Amounts Limited. 
 
 42. Foreign Real Estate. 
 
 43. Legacies when Exempt under Acts of Congress.
 
 XIV TABLE OF CONTENTS. 
 
 CHAPTER IV. 
 
 ESTATES OF RESIDENT AND NONRESIDENT DECEDENTS. 
 
 % 44. General Rules as to Domicile and Situs. 
 
 45. Conflict under These Statutes. 
 
 46. Resident Decedents, Their Heirs and Legatees. 
 
 (a) As to Personalty. 
 
 (b) Real Estate under Doctrine of Equitable Conversion. 
 
 47. Nonresident Decedents, Their Heirs and Legatees. 
 
 (a) The English Rule of "Mobilia Sequuntur Personam." 
 
 (b) Application of the Rule in America. 
 
 (c) The Rule as Applied to Tangible and Intangible Prop- 
 
 erty. 
 
 (d) Where Succession Takes Place, for Purposes of Tax- 
 
 ation. 
 
 48. Foreign Legacies. 
 
 49. Rules Where Nonresident Decedent's Debts Exceed Value of 
 
 Estate. 
 
 CHAPTER V. 
 
 APPRAISER AND APPRAISEMENT. 
 
 § 50. Assessments and Assessors Generally, and Rules Regulating. 
 
 51. Appointment, Powers, and Duties of Appraisers. 
 
 52. Land and Personal Estate, and Where Appraised— "Fair 
 
 Market Value." 
 
 53. Life Estates, Annuities, Legacies, and Terms of Years. 
 
 54. Remainders, Contingent, and Future Estates. 
 
 (a) Under Acts of Congress. 
 
 (b) In Maryland and Connecticut. 
 
 (c) In Pennsylvania. 
 
 (d) New York. 
 
 (1) Provisions of Act of 1892. 
 
 (a) Vested Estates and Remainders. 
 
 (b) Contingent Estates— When not Appralsable at 
 
 Death. 
 
 (c) May be Appraised on Vesting. 
 
 (d) When Appraisable at Death. 
 
 55. Effect of Appraisement and Appeals Therefrom.
 
 TABLE OF CONTEXTS. XV 
 
 CHAPTER VI. 
 
 VESTED AND CONTINGENT ESTATES— TRANSFERS INTER 
 VIVOS AND CAUSA MORTIS— POWERS AND LEGACIES. 
 
 § 56. Life Estates, Annuities, Legacies, and Joint Tenancies. 
 
 57. Relative Rights of Life Tenant and Remainder-Man. 
 
 58. Remainders, Contingent and Future Estates. 
 
 (a) Under the English Statutes. 
 
 (b) Under the Acts of Congress. 
 
 (c) Under New York Statutes of 1885, 1887, 1892. 
 
 (1) Preliminary Review of Early Statutes. 
 
 (2) Provisions of Transfer Tax of 1892. 
 
 (3) Decisions under These Acts. 
 
 (a) Vested Estates. 
 
 (b) Contingent or Future Estates. 
 
 (c) AYhen not Taxable nor Appraisable at Death. 
 
 (d) When Appraisable at Death. 
 
 (e) Appraisable and Taxable when Vesting in 
 
 Possession or Enjoyment. 
 
 (f) Estates Taxable under Retroactive Clause, 
 
 New York Act of 1892. 
 
 (d) Under Pennsylvania Statutes. 
 
 (e) Massachusetts Statutes. 
 
 59. Fraudulent Transfers. Trusts, and Gifts Inter Vivos and 
 
 Causa Mortis. 
 
 60. Powers of Appointment. 
 
 61. Legacies for Debts and Other Obligations. 
 
 CHAPTER VII. 
 
 SURROGATES. DISTRICT ATTORNEYS, COUNTY TREAS- 
 URERS, REGISTERS, EXECUTORS, AND OTHER 
 OFFICERS. 
 
 § 62. Surrogates, District Attorneys, County Treasurers, Registers, 
 and Appraisers. 
 63. Executors, Administrators, and Trustees.
 
 XVI TABLE OF CONTENTS. 
 
 S 64. Liability of Executors, Administrators, Trustees, Heirs, and 
 Legatees inter Se. 
 65. Compromises between Public Officers, Executors, and Lega- 
 tees. 
 
 CHAPTER VIII. 
 
 REMEDY AND PRACTICE. 
 
 § 66. Nature of Remedy and Actions and Proceedings Thereunder. 
 
 67. Lien of the Tax, and Its Effect— Statute of Limitations. 
 
 68. Interest and Penalties for Nonpayment of Tax. 
 
 69. Retroactive, Amendatory, and Repealing Statutes. 
 
 APPENDIX OF STATUTES. 
 
 (Pages 425 to 526.) 
 I. New York. 
 
 II. New Jersey. 
 
 III. Penn. 
 
 IV. Massachusetts. 
 V. Maine. 
 
 VI. Ohio. 
 
 VII. Connecticut. 
 
 VIII. Maryland. 
 
 IX. California. 
 
 X. Illinois. 
 
 APPENDIX OF FORMS USED UNDER NEW 
 YORK STATUTE. 
 
 (Pages 527 to 540.) 
 
 I. Petition of District Attorney to Enforce Payment. 
 
 II. Petition of Executor, etc., for Appraiser. 
 
 III. Petition of County Treasurer or Comptroller in. New York City. 
 
 IV. Order for Citation. 
 V. Citation. 
 
 VI. Order Appointing Appraiser. 
 VII. Notice of Appraisement
 
 TABLE OF CONTENTS. XV11 
 
 VIII. Appraiser's Report. 
 
 IX. Surrogate's Notice of Assessment. 
 
 X. Decree for District Attorney Assessing and Fixing Tax. 
 
 XI. Affidavit for Costs of District Attorney. 
 
 XII. Decree for Executor Fixing Tax. 
 
 XIII. Notice to Superintendent of Insurance. 
 
 XIV. Superintendent's Report. 
 XV. Annuity Table. 
 
 TABLE OF CASES CITED. 
 
 (Page 541.) 
 
 INDEX. 
 
 (Page 561.) 
 
 LAW INHER. —6 *
 
 ADDENDA ET CORRIGENDA. 
 
 1. The following cases have appeared since the comple- 
 tion of the text, too late for insertion : 
 
 (a) IN RE SEAMAN'S ESTATE (N. Y., Oct. 8, 1895) 147 N. Y. 
 69, 41 N. E. Rep. 401, reversing Talmadge v. Seaman, 85 Hun, 
 242, 32 N. Y. Supp. 906, referred to at page 307 et seq. of the text, 
 was reversed upon the grounds: 
 
 (1) That the children of G. took vested interests in the residuary 
 property, both real and personal, at the death of the testator, sub- 
 ject to open and let in after-born children, and to be defeated by 
 death without issue during the running of the life estate. 
 
 (2) Subdivision 3 of section 1 of the transfer tax act of 1892, con- 
 taining the words: "Such tax shall also be imposed when any such 
 person or corporation becomes beneficially entitled, in possession 
 or expectancy, to any property or the income thereof by any such 
 transfer, whether made before or after the passage of this act," — 
 applies to grants or gifts causa mortis, but does not embrace or 
 render taxable interests taken under the wills of testators dying be- 
 fore the passage of the act. 
 
 (b) STATE v. FERRIS, referred to in the text, will be reported in 
 52 Ohio (when issued), and is reported in the Northeastern Re- 
 porter, vol. 41, p. 579. 
 
 (c) STATE v. ALSTON, 94 Tenn. 674, 30 S. W. Rep. 750, upholds 
 the constitutionality of the Tennessee statute (Acts 1893, c. 174; 
 Id. c. 89, § 7), in an interesting opinion by Wilkes, J.: (1) Under 
 the well-established rule that it is a tax upon the privilege or right 
 of succession; (2)- that a tax on collateral kindred and strangers, 
 exempting lineal heirs, is valid, and not void for want of uniformi- 
 ty; (3) that the statute is valid as exempting estates of less than 
 $250. 
 
 LAW INHEB. (Xix)
 
 XX ADDENDA ET CORRIGENDA.. 
 
 (d) INHABITANTS OF ESSEX v. BROOKS (Mass.) 41 N. E. 
 Rep. 119, holds: 
 
 (1) A legatee in a common-law action to recover his legacy may 
 have the question determined whether his legacy is subject to the 
 legacy tax under statute of 1891. 
 
 (2) Legacies to towns to establish free public libraries are exempt 
 as being given for use of "charitable or educational institutions." 
 
 (e) PROVINCE'S ESTATE, 4 Pa. Dist. R. 591: 
 
 The adoption of a natural son by an act of the legislature is an 
 act of adoption, and not one of legitimation, and therefore does not 
 exempt the estate passing from the father to such natural son from 
 the collateral inheritance tax.
 
 LIST OF AUTHORS AND ARTICLES 
 
 REFERRED TO IN THIS BOOK 
 
 ON THE 
 
 INHERITANCE TAX. 
 
 AMERICAN. 
 
 1. The Power of the Legislature over the Subject of Wills, etc. 
 
 By Judge Thomas, of Peun. Post, p. 6. 
 
 2. Limitations of the Amount One may Take by Descent or Will. 
 
 H. B. Hurd, Esq. Post, p. 6. 
 
 3. The Taxing Power; Its Constitutional Limitations, Restraints, 
 
 and Requirements. Post, p. 30. 
 
 4. The Nature and Constitutionality of the Inheritance Tax. 32 
 
 Am. Law Reg. (N. S.) 364. 
 
 5. Taxation in American States and Cities. R. T. Ely. Post, p. 6. 
 
 6. The Inheritance Tax. By May West, N. Y., 1893. 
 
 7. Scott's Intestate Laws, Penn., 1871. 
 
 8. Hilliard on Taxation, 195. 
 
 9. Double Taxation. 5 Political Science Quarterly, Dec, 1890. 
 
 10. Exemptions of Religious Corporations. 19 Abb. N. C. 231. 
 
 11. Exemption of Public Charities in Penn. By John M. Gest, Esq., 
 
 post, p. Ill (note); by C. B. Penrose, Esq., post, p. 142 (note). 
 
 12. Review of Legislation in Penn. upon Illegitimates. Post, p. 130. 
 
 13. Article on Nonresidents, etc. By John A. McCarthy, Esq. 32 
 
 Am. Law Reg. (N. S.) April, 1893, p. 365. 
 
 14. Collateral Inheritance Tax in Connection with Transfers of 
 
 Stocks and Loans by Foreign Executors, etc. By H. Blanc, 
 Esq. 45 Alb. Law Jour., April 16, 1892, p. 331. 
 
 15. Collateral Inheritance Tax; Conversion of Land Outside of 
 
 State. By H. W. Page, Esq. 32 Am. Law Reg. (N. S.) 472. 
 
 LAW INHEB. (XXi)
 
 XX11 LIST OF AUTHORS AND ARTICLES REFERRED TO. 
 
 16. The Act to Tax Inheritances. 44 Alb. Law Jour., Dec. 12, 1891, 
 
 p. 478. 
 
 17. Note on Collateral Inheritance Tax. Post, p. 18. 
 
 18. Note on Contingent Remainders. By A. Abbott, Esq. 19 Ab- 
 
 bott's N. C. 234; 24 Id. 365. 
 
 19. Note on Vested Estates. 18 Abb. N. C. 300. 
 
 20. Annual Uessages of Gov. Hill, 1890, 1891. Post, p. 20. 
 
 21. Revenue Derived from the Tax by Different States. Post, p. 21 
 
 (note). 
 
 ENGLISH WRITERS. 
 
 1. Estate Duty and Succession Duty. J. E. C. Munro, London, 
 
 1894. Post, p. 11. 
 
 2. Tax on Successions and Burdens on Land. Peter B. Brodie, 
 
 London, 1S90. 
 
 3. A Handbook to the Death Duties. Sydney Buxton, London, 
 
 1S90. 
 
 4. A Treatise on Legacy Duty, etc. ; the Law of Domicile. Patrick 
 
 Lenaghan, London, 1850. 
 
 5. Taxes on Successions. Ch. C. Trevor, London, 1881. 
 
 6. Epitome of Death Duties. Robt. J. Wallace, London, 1886. 
 
 7. Layton, Legacy Duties, etc. (9th Edition). London, 1S92. 
 
 8. History of Taxation, etc., in England (3 vols.). Dowell. 
 
 9. The New Death Duties in England. Earl of Wenchelsea, 
 
 North American Rev., Jany., 1895, p. 95. 
 10. Statesman's Year Book, 1893.
 
 LAW 
 
 OF 
 
 COLLATERAL AND DIRECT INHERITANCE, 
 LEGACY, AND SUCCESSION TAXES. 
 
 SECOND EDITION. 
 
 CHAPTER I. 
 
 HISTORY OF COLLATERAL AND DIRECT INHERITANCE 
 LEGACY, AND SUCCESSION TAXES. 
 
 1. 
 
 Reasons for Such Taxes. 
 
 2. 
 
 The Tax Defined. 
 
 3. 
 
 The Roman Law. 
 
 4. 
 
 Succession and Legacy Taxes in England. 
 
 5. 
 
 The American Statutes. 
 
 
 (a) 
 
 Pennsylvania. 
 
 
 (b) 
 
 Louisiana. 
 
 
 (c) 
 
 Maryland. 
 
 
 (d) 
 
 Virginia. 
 
 
 (e) 
 
 North Carolina, 
 
 
 (f) 
 
 Delaware. 
 
 
 (g) 
 
 Connecticut. 
 
 
 (h) 
 
 West Virginia. 
 
 
 (i) 
 
 New York. 
 
 
 CJ) 
 
 Maine. 
 
 
 (k) 
 
 Massachusetts. 
 
 
 (1) 
 
 New Jersey. 
 
 
 (ml 
 
 Ohio. 
 
 
 (n) 
 
 California. 
 
 
 LAW IN HER. 1
 
 § 1 COLLATERAL INHERITANCE, ETC., TAXES. £Cll. 1 
 
 5. The American Statutes- Continued. 
 
 (0) Tennessee, 
 (p) Illinois, 
 (q) Minnesota. 
 
 (r) Proposed Legislation in Other States. 
 
 6. Canadian Statutes. 
 
 (1) Quebec. 
 
 (2) Ontario. 
 
 (3) Nova Scotia. 
 
 (4) Manitoba. 
 
 (5) British Columbia. 
 
 § 1. Reasons for Such Taxes. 
 
 The system or policy of taxing collateral and direct in- 
 heritances, legacies, and successions is not of modern origin. 
 Laws relating to these taxes were in force among the Ro- 
 mans, and perhaps even earlier. In modern times such 
 laws will be found in full operation in many European coun- 
 tries. These duties or excises are in force, as a most 
 fruitful source of revenue, among all European states. 
 They exist in Germany, Austria, France, Switzerland and 
 its cantons, Holland, Russia, Italy, Spain, Portugal, Greece, 
 Denmark, and Sweden, and other states. The tax is also 
 imposed in the Australian colonies, and has recently been 
 put into effect in the Canadian provinces. It also exists 
 in Chili and Guatemala. They have existed in England 
 for over a century, with uniform success. Their utility, as 
 a successful means of revenue, has been strongly approved 
 by writers on political economy, 1 and by jurists. 2 In view 
 
 i Smith, Wealth Nat. pp. 6S3, 6S4; Mills, Polit. Fcou. bk. 5, c. 2, § 3. 
 
 2 Mr. Justice Brewer, of the United States supreme court, says of 
 this tax in a letter to the author: "I was not aware until such exam- 
 ination of the extent to which in this country the matter of taxation 
 on successions has advanced. I have often urged that as one of the 
 most just of taxes, and, if it were graduated in proportion to the 
 amount of property passing, I think it would be most beneficial. It 
 
 (2)
 
 Ch. 1] COLLATERAL INHERITANCE, ETC., TAXES. § 1 
 
 of these facts, it would appear to be somewhat remark- 
 able that this tax was not suggested nor applied in the 
 state of New York, by the legislature, as a method of tax 
 ation, until the year 1SS5, more than GO years after its suc- 
 cessful adoption in Pennsylvania and other states. Since 
 then New York has improved her system; as, by an act 
 passed in 1892, 3 known as the "Transfer Tax Act," she 
 now taxes both lineal and collateral heirs; and the state 
 of Ohio, 4 by acts passed in 1893 and 1S94, has adopted sim- 
 ilar laws, although that upon direct or lineal heirs has re- 
 cently been declared unconstitutional. 5 A tax is also im- 
 posed upon both direct and lineal heirs in Illinois. 6 Some 
 eminent writers have favored these laws in their utmost 
 severity, 7 because they are said to tend to distribute wealth 
 from the hands of the few to the many, and for the addition- 
 al reason that they tend to compel individuals to rely more 
 upon their own exertions. This, at least, is the demon- 
 strated economical effect of such laws. 8 As the theories 
 of leading economists have been treated with great consid- 
 eration by legal writers on general taxation, 9 it would seem 
 that their views are equally entitled to respect upon this 
 subject. 
 
 would teud largely to prevent the accun ulation of property in a fam- 
 ily line, and to work that distribution which is for the interest of all." 
 
 "I do not at all criticise the wisdom of the law which imposes a tax 
 upon the succession of collaterals to estates which usually they did 
 not help to earn, and very often do not deserve. On the contrary, I 
 deem the law thoroughly just and wise." Finch, J., In Re Curtis, 142 
 N. Y. 223, 36 N. E. 887. 
 
 3 Chapter 399, Appendix, I. e, and amendments to 1895. 
 
 * Statutes, Appendix, VI. 
 
 e Chapter 2, § 18. 
 
 e See statute, Appendix, X. 
 
 7 But see Cooley, Tax'n (2d Ed.) 30. 
 
 8 Mills, Polit. Econ. supra. 
 
 » Cooley, Tax'n (2d Ed.) 8-12. 
 
 (3)
 
 § 1 COLLATERAL INHERITANCE, ETC., TAXES. (_Ch. 1 
 
 In England, where landed property has always been more 
 or less locked up by a complicated system of tenures and 
 entails, and, under the rule of primogeniture, is confined 
 to the hands of the few, and where personal property is 
 hoarded by the nobility and large corporations, and the 
 general tendency is to centralize wealth, these reasons ap- 
 ply, perhaps, with superadded force. The claim is recently 
 made, however, that the burden of the English system im- 
 posed by the succession, legacy, probate, and other duties 
 known generally as "Death Duties" falls most severely upon 
 land. 10 
 
 In this country, however, where land is widely distrib- 
 uted, and unquestionably bears the brunt and burden of 
 taxation (generally to an excessive degree in proportion to 
 what is collected from personal property), the same reasons 
 would seem to fail of application. 
 
 Personal property, however, in proportion to its immense 
 value, generally escapes the hands of the collector, and in 
 some localities — especially in large cities — to an alarming 
 extent. 11 
 
 However minute and comprehensive the law applicable 
 to the collection of this tax, a consensus of opinion seems to 
 prevail that the hiding of such property, and the adopting 
 of any dishonorable method to evade the duty, are matters 
 for congratulation on the part of the citizen. 
 
 For this reason, in particular, and owing not so much 
 to the faulty condition of the law, a large percentage of 
 personal property annually escapes taxation in the United 
 States; and any system that effectually reaches any por- 
 tion of this property deserves commendation and study. 
 
 A collateral or direct inheritance, legacy, or succession 
 
 10 See an article entitled "The New Death Duties in England." by 
 the Earl of Winchelsea and Nottingham, North Am. Rev. Jan., 1S95, 
 p. 95. 
 
 ii Ely, Tax'n, p. 177. 
 
 (4)
 
 Ch. 1] COLLATERAL INHERITANCE, ETC., TAXES. § 2 
 
 tax, it seems, presents the most complete system for reach- 
 ing the class of personal property and privileges which it is 
 framed to embrace, because its collection is aided and facili- 
 tated by the requirement of the law that a dead man's prop- 
 erty, so to speak, shall somewhere and at some time pass 
 through either a surrogate or probate court, as the case may 
 be, for settlement and distribution. 
 
 Here it is generally presented to the public view upon 
 the records; there is not so much opportunity for secrecy; 
 and thus it is brought within easy reach of the taxing state 
 or community. 
 
 § 2. The Tax Defined. 
 
 Any exact definition of the collateral inheritance or suc- 
 cession tax must necessarily depend upon the language of 
 the particular statute which may be under consideration. 
 It will be observed, however, that, so far as this country 
 is concerned, there is a general similarity between the dif- 
 ferent enactments defining the tax and those included with- 
 in and exempt from the operation of its provisions. From 
 the similarity existing between the Pennsylvania and New 
 York laws, the decisions of the courts of the former state, 
 embracing a period of over 60 years, will be found on 
 this account to be of much importance as precedents up- 
 on the many questions that may arise. 
 
 The tax may be defined generally to be a burden imposed 
 by government upon all gifts, legacies, inheritances, and 
 successions, whether of real or personal property, or both, 
 or any interest therein, passing to certain persons (other 
 than those specially excepted) by will, by intestate law, or 
 by any deed or instrument made inter vivos, intended to 
 take effect at or after the death of the grantor. 
 
 The theory of the promoters of direct inheritance and 
 collateral tax legislation is based both upon logical and 
 legal ground; i. e. that what is generally understood as the 
 
 (5)
 
 § 2 COLLATERAL INHERITANCE, ETC., TAXES. [Ch. 1 
 
 right to take by will or from intestates is, after all, but a 
 mere privilege of the municipal law, to be changed, modi- 
 fied, or repealed in the discretion of the state, and not a 
 natural right, 12 and that it is only just and proper, in con- 
 sideration of this privilege, that property passing by will 
 to lineals and collaterals, remote relatives, strangers to the 
 blood, and corporations, or, through intestate laws, to col- 
 laterals and relatives having for the most part no particular 
 claim whatever upon the decedent, should pay to the state 
 conferring this valuable privilege a fair and reasonable 
 bonus or percentage upon the value of the property thus 
 transmitted and received. Hence these laws have been 
 adjudged by the best authorities to impose, not a mere 
 property tax, as claimed by some, but simply a tax, duty, 
 or excise upon the devolution or succession of property un- 
 der inheritance and intestate laws. Upon this ground such 
 taxes have uniformly been held to be constitutionally valid, 
 both under the federal and state constitutions; 13 and it 
 has been held that the tax is not like an ordinary tax, — it is 
 
 121 Bl. Comm. bk. 2, pp. 11, 12. See "Forum" for December, 18S6; 
 article by Judge Thomas, of Pennsylvania, upon "The Power of the 
 Legislature Over the Subject of Wills," etc. 
 
 Prof. R. T. Ely, in "Taxation in American States and Cities" (page 
 519), gives in full a bill which he approves, and which was presented 
 in the Illinois legislature in 1887, to reform the statutes of descent 
 and wills. Its object is sweeping, being to restrict the amount any 
 person or corporation may take from the same decedent,— wife or hus- 
 band, not over $500,000; child, etc., not over $500,000; remote rela- 
 tives and others, not over $100,000. 
 
 Such legislation would appear impracticable, or, at least, not con- 
 sistent with the freedom of American institutions where private 
 rights and property are concerned, though it has been indorsed by 
 Mills (Polit. Econ. bk. 5, c. 9, § 1), who agreed that collateral heirs 
 should be entirely excluded (Id. bk. 2, c. 11, § 3). See, also, an article 
 entitled "Limitations of the Amount One May Take by Descent or by 
 Will," by H. B. Hurd, Esq., 4S Alb. Law J. Sept. 23, 1S93, p. 24L 
 
 is See chapter 2, §§ 8, 25, 27. 
 
 (6),
 
 Ch. 1] COLLATERAL INHERITANCE, ETC., TAXES. § 3 
 
 not exactly a penalty, — but is more in the nature of an as- 
 sessment. 14 
 
 It is not a forfeiture, because that presupposes an of- 
 fense. 15 No matter what it may be called, or upon what 
 interests imposed, no tax can be less burdensome, and in- 
 terfere less with the productive and industrial agencies of 
 society; 16 and, when the subject is fairly considered, no 
 substantial objection presents itself for not applying the 
 tax rigidly upon all interests, testate and intestate. Possi- 
 bly, small estates, widows, and purely public and private 
 charitable institutions or almshouses for the gratuitous 
 relief of the poor, sick, and helpless should in all cases be 
 exempt. 
 
 § 3. The Roman Law. 
 
 The origin of the collateral inheritance or succession tax 
 is plainly traceable to the Roman civil law. Some writers 
 claim it antedates that law. Gibbon, the historian, says 
 that it was suggested by the Emperor Augustus to the 
 senate, for the support of the Roman army; that it was im- 
 posed at the rate of 5 per cent, upon all legacies or in- 
 heritances of a certain value; but that it was not exacted 
 from the nearest relatives on the father's side; 17 and that 
 the tax was the most fruitful, as well as the most com- 
 
 14 Strode v. Com., 52 Pa. St. 182. 
 
 isArnaud's Heirs v. His Executor, 3 La. 337; Quessart's Heirs v. 
 Canonge, 3 La. 560; In re Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 
 239; Carpenter v. Pennsylvania, 17 How. (U. S.) 462. 
 
 16 In re McPherson, 104 N. Y. 316, 10 N. E. 685. 
 
 i7l Gibb. Rome, p. 133. Dion Cassius (liber 55) says: "It was im- 
 posed upon all successions, etc., except those to the nearest relatives 
 and to the poor." It is also mentioned by Pliny, Panegyricus, c. 37. 
 See 21 Enc. Britt. (8th Am. Ed.; Little, Brown & Co.) "Taxation," 
 p. 65. 
 
 (7)
 
 § 4 COLLATERAL INHERITANCE, ETC., TAXES. [Cll. 1 
 
 prehensive. 18 It was called "Vicesinia hereditatum et leg- 
 atorum." 
 
 § 4. Succession and Legacy Taxes in England. 
 
 In England the legacy tax is said to have been first 
 brought to public notice byAdam Smith. 19 There is reason- 
 able ground for claiming, however, that what was substan- 
 tially an inheritance or succession tax also existed under 
 the feudal system, especially in the exactions which were 
 made by the feudal lords of what are known as reliefs and 
 primer seisins, in which the heir or successor was compelled 
 to pay a certain sum, or perform a certain service, before 
 he could be invested with the estates of his ancestor. 20 
 While the statutes in this country, 21 as a general rule, cover 
 in one law all property passing to collaterals, etc., by will 
 and by instrument inter vivos, to take effect at or after the 
 death of the grantor, whether of real or personal property, 
 in England legacy and succession taxes are imposed under 
 independent statutes. 
 
 Only legacies of personal property were, at first, taxed in 
 that country. Successions to real property, to which the 
 term is more accurately restricted, 22 were not made liable 
 until the year 1853. The English legacy act originated, 
 in 1780, with Lord North, whose attention, it is stated, 
 was drawn to the Roman and Holland systems by Adam 
 Smith's book. 23 
 
 isl Gibb. Rome, p. 134. See, also, Williams' Case (1827) 3 Bland. 259. 
 
 is Smith, Wealth Nat. pp. 683, 684. 
 
 20 Bl. Comm. (Shars. Ed.) bk. 2, *66-*68; Smith, Wealth Nat. p. 
 684; Ely, Tax'n, 32. 
 
 2i See Appendix, where 10 of the most important state statutes 
 are given in. full. 
 
 22 Blake v. McCartney, 4 Cliff. 101, Fed. Cas. No. 1,49S. 
 
 233 Dow ell, Hist. Tax'n, 14S. Gibbon's History was published be- 
 
 (8)
 
 (Jh. 1] COLLATERAL INHERITANCE, ETC., TAXES. § 4 
 
 As this act did not apply to devolutions of real property, 
 but was a species of stamp tax upon receipts given for any 
 legacy or share of the personal property of a decedent, 
 and, being easily evaded, it was not a great source of 
 revenue, particularly as where no receipt could be given 
 no tax could be imposed; 24 so that, in 1796, Pitt adopted 
 the Roman system, as modified in Holland, by endeavoring 
 to have all successions taxed. He clearly discerned the 
 effect of such a law upon the revenues of the kingdom, if 
 it could be applied to real estate and kindred property; 
 but the act, as proposed to parliament, seems to have met 
 with opposition, for, as finally passed, it only applied to 
 personal property and shares given under the statute of 
 distributions. By later statute it was extended to dona- 
 tiones mortis causa. 25 Finally, in 1853, by the succes- 
 sion duty act, 26 a new law came in force, taxing all succes- 
 sions to real property, chattels real, and a vast variety of 
 personal property and rights not reached by the legacy act. 
 This law owed its existence to the exertions of Gladstone, 
 and to a certain extent displaces the legacy act, though, 
 curiously enough, it has been held that, where the legacy 
 tax may not be imposed, the estate passing may neverthe- 
 less be liable to succession duty, and under some circum- 
 stances to both. 27 
 
 The act of Victoria is minute in its details, contains elab- 
 orate tables for the purpose of establishing the value of 
 
 tween 1776 and 1780; Smith's work in 1776; but it is just as likely, 
 as Gibbon held office as secretary under Lord North, that the latter 
 received his ideas from the former. 
 
 24 Green v. Croft, 2 H. Bl. 30. 
 
 26 36 Geo. III. c. 52, § 7; 8 & 9 Vict. c. 76, § 4; 44 Vict. c. 12, § 38. 
 
 2« 16 & 17 Vict. c. 51. 
 
 2T Attorney General v. Cleave, 31 Law T. (N. S.) 86; Attorney Gen- 
 eral v. Littledale, L. R. 5 Exch. 275. 
 
 (9)
 
 § 4 COLLATERAL INHERITANCE, ETC., TAXES. [Ch. 1 
 
 annuities and other interests under it and under the legacy 
 act, 28 and seems to tax every conceivable interest accruing 
 either by last will and testament, intestate laws and acts 
 inter vivos, and is in some instances both prospective and 
 retroactive. 29 Altogether it presents a most admirable sys- 
 tem of taxation. 30 
 
 There would seem to be, as a general rule, no exceptions 
 allowed under this act, even charitable corporations be- 
 ing taxed; 31 but, under the legacy act, legacies to husbands 
 and wives are not taxed. The law was the same under 
 the legacy act of congress. The succession duty act is 
 more comprehensive in these respects than any of the stat- 
 utes existing in this country, because its effects are sweep- 
 ing, including not only strangers and collaterals, but, as 
 w 7 e have said, lineal heirs in the ascending and descending 
 line. 32 The percentage of the tax is justly graduated from 
 1 to 10 per cent, which latter sum is assessed upon shares 
 to strangers to the blood and remote relatives. 33 
 
 The succession tax is not imposed upon estates under 
 
 2 8 16 & 17 Vict. c. 51. § 31. 
 
 2 9 Attorney General v. Fitzjohn, 2 Hurl. & N. 465; Wilcox v. Smith, 
 26 Law J. Ch. 596; Attorney General v. Middleton, 3 Hurl. & N. 125. 
 
 30 The English statutes are collated in Trev. Tax. Sue. (4th Ed., Lon- 
 don) p. 299 et seq. 
 
 si 16 & 17 Vict. c. 51, § 16. 
 
 32 Layton, in speaking of the act, says: "The provisions are of a 
 most comprehensive and searching character, so much so that it is 
 difficult to imagine a transaction or dealing with property, to take ef- 
 fect upon a death after the 19th May, 1S53, that will elude its opera- 
 tion, general or special." Leg. & Sue. Dut. (7th Ed.) p. 110. 
 
 33 "The principle of graduation (as it is called),— that is, of levying 
 a larger percentage on a larger sum,— though its application to gen- 
 eral taxation would be, in my opinion, objectionable, seems to me 
 both just and expedient as applied to legacy and inheritance duties." 
 Mills, rolit. Econ. bk. 5, c. 11, § 3. 
 
 (10)
 
 Ch. 1] COLLATERAL INHERITANCE, ETC., TAXES. § 4 
 
 £300, 34 and the legacy duty is not imposed when the per- 
 sonal property is under £100. 35 
 
 That these taxes, when applied under well-drafted laws, 
 may be made wonderfully remunerative to the state, and 
 must lessen the general burden, is easily demonstrated by 
 the fact that the English government now derives an enor- 
 mous revenue from their enforcement. 36 The law, however, 
 is still said to be open to revision. 37 
 
 The duty has been increased and extended by other stat- 
 utes. 38 
 
 The act of 1889 fixed an entirely new duty, viz. a fixed 1 per 
 cent, estate duty upon the capital value of estates exceed- 
 ing £10,000 in value. This act expires June 1, 1896, and is 
 said to be somewhat experimental; and by the "finance act," 
 passed in 1891, a further tax has been imposed of 1 per cent, 
 upon real estate and personal property of the value of £10,- 
 000 and upward. 39 This is a substitute for the estate duty. 
 
 a* 44 Vict. c. 12, § 36; 16 & 17 Vict. c. 51, § 18. 
 
 3 5 43 Vict. c. 14, § 13. 
 
 se in 1SS1 it amounted to £3,592,777; in 1SS2, £3,540,5S5; and in 
 1883, £3,536,238, or nearly $18,000,000. 
 
 3 7 3 Dow ell, Hist. Tax'n, p. 155. 
 
 ss See Act 1SSS, 51 Vict. c. 8; Act 18S9, 52 Vict. c. 7, "Estate Duty"; 
 57 & 5S Vict. (1S94) c. 30, "The Finance Act." 
 
 3 9 See these acts discussed, in a brochure, entitled "Estate Duty and 
 Successive Duty," by J. E. C. Munro, Esq., London, 1894. The inter- 
 ested reader may also consult the following authors upon the English 
 acts: 
 
 (1) Brodie, Peter B. Tax on Successions and Burdens on Land. 
 London. 1890. 
 
 (2) Buxton, Sydney. A Handbook to the Death Duties. London. 
 1890. 
 
 (3) Lenaghan, Patrick. A Treatise on Legacy Duty, etc.; the Law 
 of Domicile. London. 1850. 
 
 (4) Trevor, Ch. C. London. 1881. 
 
 (5) Wallace, Robt. J. Epitome of Death Duties. London. 1886. 
 
 (6) Lay ton. Legacy, etc.; Duties. 9th Ed. London. 1892. (This 
 
 (11)
 
 § 4 COLLATERAL INHERITANCE, ETC., TAXES. [Ch. 1 
 
 The tax is said to bear heavily and severely upon land, 
 and it has been criticised upon this ground. 40 
 
 The revenue derived from the probate, legacy, and succes- 
 sion and estate duties, in England, is enormous, amount- 
 ing to over £11,000,000 annually. 41 Payment of the tax is 
 secured by provisions which not only make the duty a first 
 charge or lien on the property, as well as a debt to the crown 
 from the successor, but also make all persons accountable 
 to the crown for the duty, — such as trustees and executors. 
 We have given a few excerpts from these acts in the notes. 42 
 
 is an excellent work. It contains a full account of all death duties 
 exacted under the English law.) 
 
 (7) Dowell. History of Taxation and Taxes in England. 
 
 40 See article "The New Death Duties in England," by the Earl of 
 Winchelsea and Nottingham, North Am. Rev. Jan., 1895, p. 95. 
 
 4i See Finance Accounts 1889-90, p. 17; Id. 1890-91, p. 19; Report 
 Com'rs Int. Rev. 1891, p. 19; Statesman's Year Book 1893, p. 43; 
 "The Inheritance Tax," by Max West, N. Y., 1893, p. 41. 
 
 42 3 Dowell, Hist. p. 152; 1G & 17 Vict. c. 51, §§ 42, 44. For the Eng- 
 lish statutes and decisions thereon, also consult 3 Fish. Har. Dig. 
 5416-5430; 4 Fish. Har. Dig. 7480; 6 Fish. Com. Law Dig. 631. The 
 "Legacy Act" (55 Geo. III. c. 184) makes the following rates payable 
 on legacies and the residue of personal estate and real estate directed 
 to be sold, whether the title to such residue accrues by virtue of any 
 testamentary dispositions or upon a partial or total intestacy, wheth- 
 er the amount is £20 or upward: 
 
 (1) Children of their descendants, or parents, or other lineal ances- 
 tors, f 1 per cent. 
 
 (2) Brothers or sisters, or their descendants, £3 per cent. 
 
 (3) Brothers or sisters of fathers and mothers, or their descendants, 
 £5 per cent. 
 
 (4) Brothers or sisters of grandmothers, etc., £6 per cent. 
 
 (5) Persons of any degree of collateral consanguinity, or strangers 
 to the blood, £10 per cent. 
 
 See 36 Geo. III. c. 52; 45 Geo. ni. c. 28. 
 
 The "Succession Duty Act" of 1853 (16 & 17 Vict. c. 51. See, also, 
 51 Vict. c. 8; 52 Vict. c. 7) provides as follows: "Every past or future 
 disposition of property by reason whereof any person has or shall be- 
 come beneficially entitled to any property or the income thereof upon 
 (12)
 
 Cb. 1] COLLATERAL INHERITANCE, ETC., TAXES. § 5 
 
 § 5. The American Statutes. 
 
 As has been said, collateral inheritance, succession, and 
 lineal tax laws now exist in the states of Pennsylvania, 
 Maryland, Illinois, Virginia, West Virginia, New York (di- 
 
 the death of any person dying after the time appointed for the com- 
 mencement of this act, either immediately or after interval, either 
 certainly or contingently, and either originally or by way of substitu- 
 tive limitation, and every devolution by law of any beneficial interest 
 in property or the income thereof upon the death of any person dying 
 after the time appointed for the commencement of this act, to any 
 person in possession or expectancy, shall be deemed to have conferred 
 or to confer, on the person entitled by reason of any such disposition 
 or devolution, a 'succession,' and the term 'successor' shall denote the 
 person entitled, and the term 'predecessor' shall denote settlor, dis- 
 pones testator, obligor, ancestor, or other person from whom the in- 
 terest of the successor is or shall be derived." 
 
 Joint tenants taking by survivorship are deemed successors, and suc- 
 cessions are conferred by general powers of appointment. Persons 
 entitled to real estate, subject to life leases, are not liable; and dis- 
 positions with a reservation of benefit to the grantor, etc., or to take 
 effect at periods depending on death, or made to evade the duty, are 
 liable. 
 
 The following are the rates of duty: 
 
 (1) Where "successor" is the lineal issue or lineal ancestor of pred- 
 ecessor, £1 per cent. 
 
 (2) Where he is brother, sister, or descendant of brother or sister of 
 predecessor, £3 per cent. 
 
 (3) Where he is brother or sister of father or mother, or descendant 
 of brother or sister of father or mother, etc., £5 per cent. 
 
 (4) Where he is brother or sister, or grandmother or grandfather, or 
 descendant of brother or sister of grandfather or grandmother of 
 predecessor, £6 per cent. 
 
 (5) Where he stands in any other degree of collateral consanguinity 
 to the predecessor, or is a stranger in blood to him, £10 per cent. 
 
 (G) Succession subject to trusts for charitable or public purposes are 
 liable to £10 per cent. 
 
 For tables calculating legacy and succession duties under above 
 acts, see, also, Theob. Wills (3d Ed.) 614. 
 
 (13)
 
 § 5 COLLATERAL INHERITANCE, ETC., TAXES. [Ch. 1 
 
 rect and collateral), Connecticut, Delaware, and Ohio (direct 
 and collateral), and were for a time in force in North Caro- 
 lina and Louisiana. 43 The collateral inheritance tax laws 
 have also been put in force in Maine, Massachusetts, Cali- 
 fornia, Ohio, Illinois, New Jersey, Tennessee, and by consti- 
 tutional provision in Minnesota, and it will not be long be- 
 fore they are enacted in every state of the Union. 
 
 Legacy and succession taxes were likewise imposed upon 
 real and personal property under several different acts by 
 congress during the War of the Rebellion, and they were a 
 prolific source both of revenue and litigation to the federal 
 government. They imposed a tax of 1 to 5 per cent, upon 
 both lineal and collateral heirs, exempting only husband or 
 wife of decedent under the legacy act, and in this respect, as 
 well as in the terms used, were much like the English acts 
 from which they were evidently taken. 44 These laws, how- 
 ever, with their numerous amendments, were all swept away 
 by the repealing act of 1870, and it has not been thought 
 important to present them in the Appendix. 45 
 
 Under the income tax act passed in 1894, a tax of 2 per 
 cent, was imposed by congress upon money, and the value 
 of all personal property acquired by gift or inheritance, but 
 
 43 See statutes of New York, New Jersey, Pennsylvania, Massa- 
 chusetts, Maine, Connecticut, Illinois, California, Ohio, and Mary- 
 land, Appendix I.-X.; In re McPherson, supra; Ely, Tax'n (1888) 
 p. 313; Davies' System of Taxation mentions Missouri, but I 
 have been unable to find any such law in that state. See, also, "The 
 Inheritance Tax," by Max West, N. Y., 1893. 
 
 44 Scholey v. Rew, 23 Wall. 349. 
 
 4 5 Act June 30, 1864, c. 173, § 173; 13 Stat. 223-285; Id. p. 287, §§ 
 124, 127, 128; 14 Stat. 98-100; repealed by Act July 14, 1870, c. 255 
 (16 Stat. 256-261) § 17 (Rev. St. U. S. [2d Ed., 1878] p. 679) —the re- 
 pealing clause of which act, however, provided: "All provisions of 
 said act shall continue in full force for levying and collecting all taxes 
 properly assessed or liable to be assessed or accruing under the pro- 
 visions of former acts or drawbacks," etc 
 (14)
 
 Ch. 1] COLLATERAL INHERITANCE, ETC., TAXES. § 5 
 
 under the recent decision of the supreme court this act 
 having been declared unconstitutional this portion of the act 
 falls. 46 
 
 In this country, differing from the English method, except 
 under the acts of congress above referred to, these taxes 
 have, as a rule, been imposed only upon certain collateral 
 relatives, strangers to the blood, and corporations that are 
 not specially exempted by law from taxation. In includ- 
 ing both real and personal property within the purview of 
 the law, the earliest of American statutes made a vast im- 
 provement upon the English system as embraced in the leg- 
 acy act, but, unlike the English laws or the succession and 
 legacy laws of congress, too many exemptions and excep- 
 tions seem to have been made in the state statutes, and thus 
 a vast amount of property devolving upon collaterals and 
 so-called charitable institutions annually escapes taxation 
 here which is there made to pay duty. In these respects 
 the American system is insuperably inferior to that of Eng- 
 land. 
 
 (a) Pennsylvania. 
 
 The English law evidently soon attracted attention in this 
 state, for the first collateral inheritance act was passed in 
 Pennsylvania in 1826. This act is, perhaps, still in force 
 under the rulings of the Pennsylvania courts, but it has been 
 considerably modified by various amendments, added from 
 time to time, and recently, by the law of 1887, the whole 
 subject has been codified. It is said that the provisions of 
 the new act are scarcely more than a re-enactment and con- 
 solidation of the prior laws. 47 
 
 46 Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 15 Sup. Ct. 
 673. 
 
 47 Laws Pa. 1887, p. 79. See Appendix, III.; Commonwealth's Ap- 
 peal, 128 Pa. St. 603, 18 Atl. 386; Id. (Pa. Sup.) 17 AtL 1096; Id., 5 Pa. 
 Co. Ct. R. 271, affirmed 127 Pa. St. 435, 17 Atl. 1094; Bittinger's Estate 
 (18S9) 129 Pa. St. 33S, 18 Atl. 132. See In re Del Busto's Estate 
 
 (15)
 
 § 5 COLLATERAL INHERITANCE, ETC., TAXES. [Ch. 1 
 
 "The tax has contributed so essentially to the firm estab- 
 lishment of the credit of Pennsylvania," says an eminent 
 judge, "and has been so long approved by the people of the 
 state, that it is not likely ever to be given up," 48 an asser- 
 tion the truth of which is fully confirmed by the large reve- 
 nue derived from this tax in 1889, and since. 49 Efforts have 
 been recently made in this state to put in force a tax on 
 property passing to direct or lineal heirs, but it failed of 
 success. 
 
 (b) Louisiana. 
 
 In Louisiana, by law of 1828, 50 a legacy tax was imposed 
 of 10 per cent, upon legacies to foreign heirs and citizens 
 residing abroad. This law, as modified, was finally repealed 
 in 1877, for what reason does not appear. 51 
 
 (c) Maryland. 
 
 The Maryland law was passed in 1864, and is now con- 
 tained in the Code of that state. 52 
 
 (1888) 45 Leg. Int. 474, 23 Wkly. Notes Cas. Ill, where Penrose, J., 
 has collated and explained all the laws of Pennsylvania on the sub- 
 ject. The act of 1887 is simply a digest or compilation of all prior 
 acts on the subject, and declaratory of the law as theretofore con- 
 strued. Small's Estate, 151 Pa, St. 1, 25 Atl. 23; Weaver's Estate 
 (1895) 12 Lane. Law Rev. 57. The law from 1S26 to 1855 will be 
 found iD 1 Brightly's Purd. Dig. 214. The subject is also treated to 
 a limited extent in Scott, Intest. Laws Pa. 1871, p. 535 et seq., and 
 briefly considered by Hil. Tax'n, p. 195. 
 
 4 8 Com. v. Coleman, 52 Pa. St. 473. 
 
 49 See note, p. 21. 
 
 eo Acts March 25, 1828, Act No. 95. 
 
 6i Act 1S77, p. 125, repealing articles 1221-1223, Rev. Civ. Code, 
 and sections 3683, 3684, Rev. St. 1870. See, also, Act March 15, 1830, 
 § 1; Act March 16, 1842, § 4. 
 
 52 See Appendix, VIII. ; Pub. Gen. Laws Md. 1888, p. 1212, art. SI; 
 Rev. Code 1S78, p. 117. See, also, Laws 1844-45, c. 237; Laws 
 1S45-46, c. 202; Laws 1874, c, 483, §§ 113, 115; Laws 1880, c. 444; 
 
 (10)
 
 Ch. 1] COLLATERAL INHERITANCE, ETC., TAXES. § 5 
 
 (d) Virginia. 
 
 In Virginia the law has, from time to time, existed since 
 1844. It imposed a tax of 5 per cent. 53 
 
 (e) North Carolina. 
 
 The statute of North Carolina upon this subject was pass- 
 ed in 1846, 54 but it seems to have suffered repeal in 1883. 55 
 
 (f) Delaware. 
 
 The statute passed in Delaware in 1869, has since been 
 embodied in the Kevised Code of that state. The act is 
 based upon the English statutes, the tax being graduated 
 from 1 to 5 per cent. 56 
 
 (g) Connecticut. 
 
 The statute of Connecticut, passed in 1889, imposes a tax 
 of 5 per cent, upon all sums over $1,000. 57 
 
 (h) West Virginia. 
 
 In this state a law has existed since 1887, by which a tax 
 of 1\ per cent, is imposed upon collateral inheritances, and 
 where the amount of the estate is less than $1,000 it is ex- 
 empt. 58 
 
 Id. c. 455. In this state the gift of freedom to a slave was taxed. 
 State v. Dorsey (1848) 6 Gill, 388. 
 
 ss See Eyre v. Jacob, 14 Grat. 422; Laws Feb. 6, 1844; Code 1849, 
 c. 36 et seq.; Act March 28, 1863, § 15; Act 1866-67, p. 861, c. 64, § 3. 
 The act of 1S54 was repealed by the act of 1856. Fox v. Com., 16 
 Grat. 1. For a history of these laws, see Miller v. Com. (1876) 27 
 Grat. 112. 
 
 5 4 Laws 1846, c. 72, §§ 1, 2; Laws 184S-49, c. 81; Battle's Revisal 
 1873, p. 775, § 59. 
 
 5 5 Code N. C. 1883, § 3867. 
 
 se See Rev. Code Del. 1874, p. 38; 13 Laws Del. 1869, c. 390. 
 
 57 See Appendix, VII., Pub. Laws Conn. 1SS9, p. 106, c. 180, as 
 amended by Laws 1893, c. 257, p. 406. 
 
 5 8 Warth's Code (2d Ed.) 1887, c 32, § 51a; Laws 1S87, c. 31. See, 
 also, Laws 1891, c. 116. 
 
 LAW INHER. 2 (17)
 
 § 5 COLLATERAL INHERITANCE, ETC., TAXES. [Ch. 1 
 
 (i) New York. 
 
 The law in this state was originally enacted in 1885. B9 It 
 was at first purely a tax upon collateral inheritances. The 
 statute was amended in 1887, 1889, 1890, and 1891. 60 The 
 original acts of 1885 and 1887 were based upon the statutes 
 of Pennsylvania existing prior to 1855, and with few ex- 
 ceptions they differed little in substance from these laws. 
 They were, however, drafted carelessly, and were indefinite 
 regarding the taxation of contingent interests, remainders, 
 and future estates, and were, for that reason, the cause of 
 considerable judicial criticism, and of conflicting opinions in 
 the lower courts. It has been well said that these statutes 
 represented the crude and severe system as it existed under 
 the Pennsylvania act of 1826, without embodying the vari- 
 ous amendments subsequently added thereto. 61 But in 1891, 
 owing to the exertions of the then governor (Hon. David B. 
 Hill), the system was extended so as to include also a tax 
 of 1 per cent upon lineal heirs where the estate was per- 
 sonalty of $10,000 or over, real estate being exempt. 62 The 
 system was further improved in 1892 by the enactment of 
 an entirely new law, containing many important provisions, 
 especially those in relation to the taxation of contingent 
 and future estates. 63 Its provisions have largely been made 
 definite by judicial determination. This act with further 
 amendments to 1895 is still in force. The act is entitled 
 "An act in relation to taxable transfers of property." It 
 imposes — First, a tax upon personalty devised to or inherit- 
 ed by lineal heirs and others of 1 per cent, where the estate 
 
 59 Chapter 483 took effect June 30, 1SS5; In re Howe, 112 N. Y. 
 100, 19 N. E. 513, affirming 48 Hun, 235. 
 
 eo See Appendix, I., Laws 1887, c. 713; Laws 1889, cc. 307, 479; 
 Laws 1S90, c. 553; Laws 1891, e. 215. 
 
 6i For notes on Collateral Inheritance Tax, see 19 Abb. N. C. 234; 
 In re Wolfe, 29 Abb. N. C. 358, 456, 21 N. Y. Supp. 515, 522. 
 
 62 Laws 1891, c. 215. 
 
 es See Appendix, I. e, Laws 1S92, c. 399. 
 
 (18)
 
 Cll. 1] COLLATERAL INHERITANCE, ETC., TAXES. § 5 
 
 if of the value of $10,000 or more; and, secondly, a tax upon 
 both real and personal property, devised to, or inherited by, 
 collateral heirs, corporations, and strangers to the blood, 
 the tax being at the rate of 5 per cent, where the estate is 
 of the value of $500 or over. 64 
 
 A number of amendments were made to the act of 1892 
 by the legislature between that time and the year 1S95, and 
 these will also be found in their proper places in the Appen- 
 dix. 65 
 
 The revenues derived by the state under these important 
 laws, as will be seen by the statistical table below, have in- 
 creased almost uniformly each year, and it will, if properly 
 managed, be, in the course of a few years, one of the most 
 remunerative taxes imposed. The expense of collection is 
 not large, as, instance the year 1S92, it was only $81,819. 
 The revenue under the acts would be much larger were there 
 not so many exemptions allowed to charitable, religious, and 
 other miscellaneous corporations and institutions, and by 
 judicial exemptions of the personalty of nonresidents, as 
 decided in Re James. 66 At least 13 different institutions 
 of religious and charitable character are exempted un- 
 der the act of 1890, 67 and others under the act of 1892. 68 
 
 e* Act 1S92, c. 399, § 26, and Laws 1S93, p. 355, c. 199, § 2, repeal 
 the following laws previously existing: Laws 18S5, c. 4S3; Laws 
 1SS7, c. 713; Laws 1889, cc. 307, 479; Laws 1891, c. 215; Laws 1892, 
 c. 443. 
 
 The following statutes remain unrepealed, and with the act of 1892 
 are contained in the Appendix: Laws 1S90, c. 553; Laws 1892, c. 
 168; Laws 1893, c. 704; Id. p. 1725, c. 692, § 4Sc; Id. p. 355, c. 199; 
 Laws 1894, p. 1929, c. 767. 
 
 es They are Laws 1895, c. 556, amending section 13, c. 399, Laws 
 1892, and chapter 191, amending section 14; chapter 378, amending 
 section 15. 
 
 66 144 N. Y. 6, 38 N. E. 961. 
 
 67 Chapter 553. 
 es Chapter 399. 
 
 (19)
 
 § 5 COLLATERAL INHERITANCE, ETC., TAXES. [Ch. 1 
 
 Exemptions so sweeping impair the stability of any law, 
 and they should be either wholly repealed or restricted to 
 institutions that do public charity. 69 
 
 es On January 7, 1S90, Governor Hill, of New York, who has been 
 a strong exponent of these laws, said in his message to the legisla- 
 ture: "But it is respectfully suggested as worthy of the consideration 
 of the legislature whether a satisfactory solution of the problem of 
 taxing personal property may not be found in a graduated probate 
 and succession tax upon the personal property of decedents, develop- 
 ing into a complete system the theory of the collateral inheritance 
 tax. Already most estates of decedents are carefully appraised by 
 disinterested parties through the machinery of our surrogates' courts. 
 Without going into details, it seems possible to devise a system re- 
 quiring all estates of decedents over a certain valuation to be admin- 
 istered in a surrogate's court, at least so far as to obtain an appraisal 
 of the personal property thereof; and, after allowing reasonable ex- 
 emptions to the immediate next of kin, a percentage tax may be im- 
 posed upon the remainder, reasonably graduated by an increasing 
 percentage as the relationship of those who are to receive is more 
 remote, and as the valuation of the estate is greater. The theory of 
 such a graduated percentage tax is not harsh or inequitable. Such a 
 system has, I am advised, existed for a long time in England, and 
 has worked well, and the propriety of its adoption here is suggested 
 for your consideration." In his annual message to the legislature 
 (January 6, 1891), Governor Hill again touched upon this subject, 
 recommending a probate and succession tax. He said: "If, howevei\ 
 the legislature in its wisdom shall hesitate to adopt the radical 
 changes here outlined, another method of reaching personal property 
 for the purpose of taxation may be found in the plan of a graduated 
 probate and succession tax upon the personal property of decedents. 
 Nearly all such estates are carefully appraised by impartial officials 
 selected by our surrogates' courts, and upon such appraisal the per- 
 sonal estate can at least be subjected to one tax, although it may 
 never have been able to be reached during the life of the decedent. A 
 system can easily be devised absolutely requiring all estates of dece- 
 dents over a certain valuation to be administered in a surrogate's 
 court, to the extent of obtaining an appraisal of the personal property 
 thereof; and, after allowing reasonable exemptions to the immediate 
 next of kin, a fair percentage tax may be imposed upon the remain- 
 der, collectible in the surrogate's court, and reasonably graduated ac- 
 (20)
 
 Ch. 1] COLLATERAL INHERITANCE, ETC., TAXES. 
 
 § 5 
 
 (j) Maine. 
 
 A collateral inheritance tax of 2-J per cent., where the 
 property passing is above the sum of f 500, is imposed by a 
 
 cording to the value of the estate. The theory of such a graduated 
 percentage tax seems fair and just, especially in view of the fact 
 that personal property, under existing methods, nearly entirely es- 
 capes taxation during the life of its owner. A similar system is in 
 operation in England, and I am advised that it works satisfactorily, 
 and the propriety of its adoption here is suggested for your consid- 
 eration." 
 
 Table showing the revenue derived from collateral taxes by the fol- 
 lowing states: 
 
 
 18S6. | 1887. 
 
 1SS8. 
 
 1889. 
 
 1890. 
 
 
 $ 84,128 $501,716 
 662,976 763,871 
 1 45,597 
 
 $736,062 
 
 713.434 
 
 57,767 
 
 $1,075,692 
 
 1,378,458 
 
 56,393 
 
 $ 1,117,6::7 CO 
 
 
 670.371 00 
 
 
 83,656 00 
 
 
 1 913 
 
 
 
 
 
 
 14,600 42 
 
 
 
 
 
 
 1891. 
 
 1892. 
 
 1893. 
 
 1894. 
 
 1S95 to 
 Aug. 8. 
 
 
 $ 8-/0,267 00 
 
 1,232,766 00 
 
 67,738 00 
 
 $1,786,218 00 
 
 1,111,120 00 
 
 114,009 00 
 
 $3,071,687 09 
 
 .$1,688,954 20 
 
 $1,90S,122 
 
 
 
 
 
 
 
 
 
 
 
 74.758 93 
 
 177,662 97 
 
 
 
 
 
 
 
 
 Massachusetts received in 1892 about $12,000 from this tax; in 
 1S93, about $59,000; and in 1894 over $127,000. It is proposed to 
 tax direct heirs in this state. 
 
 The present comptroller of the state of New York, and his deputy, 
 Hon. W. J. Morgan, have taken a very active interest in the en- 
 forcement of these laws. In the report of the comptroller for 1895 
 he says: "During the fiscal year ending September 30, 1894, there 
 was collected under the transfer or succession tax laws the sum of 
 $1,688,954.20. The average for the eight prior years during which 
 the law has been in operation has been $1,165,426.31. There was 
 therefore collected $523,527.89 in excess of the average annual 
 amount. The fiscal year ending September 30, 1S93, was notable in 
 the number of large estates settled, four estates alone paying the un- 
 usual tax of $1,096,036.97. The largest sum received during the last 
 fiscal year from any estate was $70,000. Some decrease in the receipts 
 of this bureau during the past year has undoubtedly been due to the 
 
 (21)
 
 § 5 COLLATERAL INHERITANCE, ETC., TAXES. [Ch. 1 
 
 statute passed in this state in 1893. 70 By recent decision of 
 the supreme court this statute has been declared constitu- 
 tional. 71 
 
 (k) Massachusetts. 
 
 In this state a collateral inheritance tax of 5 per cent, is 
 imposed by an act passed in 1891. 72 It is imposed upon all 
 estates exceeding the value of $10,000, after the payment of 
 all debts. This act has been declared constitutional by the 
 supreme court of the state. 73 
 
 (1) New Jersey. 
 
 In this state, by a statute passed in 1892, a collateral 
 inheritance tax of 5 per cent, is imposed upon all estates 
 passing to collaterals where the value exceeds $500. This 
 act was amended in 1893 and 1894, and all prior laws re- 
 pealed. 74 The act has been declared unconstitutional so far 
 as it attempts to tax real estate. In other respects it is a 
 valid legislative act. 75 Real estate is now liable under the 
 act of 1894* 
 
 (m) Ohio. 
 
 In this state there are two statutes: A collateral inherit- 
 ance tax imposed under an act passed in 1893 and amended 
 April 20, 1894. 76 This act imposes a tax of 5 per cent, upon 
 
 shrinkage in property values." Report of Hon. James A. Roberts. 
 State Comptroller, N. Y., 1895, p. 17. 
 
 to See Appendix, V., Laws 1893, c. 146; Laws 1895, cc. 96, 124. 
 
 7i State v. Hamlin (1894) 86 Me. 507, 30 Atl. 76. 
 
 7 2 Appendix, IV. a, Laws 1891, c. 425. 
 
 73 Minot v. Winthrop (1894) 162 Mass. 116, 38 N. E. 512. 
 
 74 Appendix, II., Laws 1894, c. 210, repealing Laws 1892, c. 122; 
 Laws 1893, c. 210. 
 
 7 6 Van Riper v. Happenheimer (Feb., 1894) 17 N. J. Law J. 49; In 
 re Dobermuller, Id. 378. 
 
 ♦Appendix, II.; State v. Hancock (1895; N. J.) 32 Atl. 689. 
 
 7 6 See Appendix, VI. a, Laws 1893, p. 14, as amended by Laws 
 1S94, p. 169. 
 (22)
 
 Ch. 1] COLLATERAL INHERITANCE, ETC., TAXES. § 5 
 
 all property exceeding the value of $200. By a further act, 
 passed in 1894, entitled "An act to impose a direct inherit- 
 ance tax," 77 a graduated tax is imposed upon property pass- 
 ing to lineal heirs. But this act has been recently declared 
 unconstitutional, as violating provisions of the state and 
 federal constitutions. On appeal to the supreme court of 
 Ohio the decision of the lower court was affirmed. 78 
 
 (n) California. 
 
 A law taxing collateral inheritances, bequests, and devises 
 was passed by the legislature of this state and approved 
 March 23, 1S93. 79 It is evidently modeled upon the New 
 York statute of 1887. It imposes a tax of 5 per cent, upon 
 all estates passing to collateral heirs and strangers, provid- 
 ing that an estate which may be valued at a less sum than 
 $500 shall not be subject to the tax or duty. 
 
 (o) Tennessee. 
 
 By a statute passed in this state in 1891, 80 and continued 
 by a law passed in 1893, 81 a 5 per cent, collateral inheritance 
 tax is now imposed. 
 
 (p) Illinois. 
 
 Under a recent statute passed in June, 1895, 82 entitled 
 "An act to tax gifts, legacies and inheritances in certain 
 cases and to provide for the collection of the same," a tax 
 
 7 7 See Appendix, VI. b, Laws 1894, p. 166. 
 
 78 The decision in the lower court is in State v. Ferris (April, 1S95) 
 9 Ohio Cir. Ct. R. 299, affirmed, as State of Ohio ex rel. Prosecuting 
 Attorney v. Ferris, Probate Judge, 23 Yv'kly. Law Bui. (Ohio) July 
 1, 1S95, 349, 352. The opinion will be published in the N. E. Rep. 
 as soon as handed down. 
 
 7 9 See Appendix, IX., Laws 1S93, c. 168. 
 so Laws 1891, Extraord. Sess. c. 25, § 6. 
 si Laws 1S93, c. 174, p. 347. 
 
 8 2 See statute, Appendix, X., taken from Bradwell's Edition of 
 Illinois Statutes for 1895 (page 213), approved June 15, 1S95, in force 
 July 1, 1895 (Laws 1895, Reg. & Ex. Sess. p. 301). 
 
 (23)
 
 § 5 COLLATERAL INHERITANCE, ETC., TAXES. [Ch. 1 
 
 is now imposed 83 upon certain lineal and collateral heirs 
 of 1 per cent, providing that any estate which may be val- 
 ued at a less sum than $20,000, shall not be subject to any 
 such duty or taxes; and the tax is to be levied in this case 
 only upon the excess of $20,000 received by each person. 
 The tax on certain collateral heirs, such as uncle, aunt, niece, 
 nephew, or any lineal descendant of the same, is imposed at 
 the rate of $2 on the clear market value of such property 
 received by each person on the excess of $2,000 so received 
 by each person. The statute provides that in all other 
 cases the rate shall be as follows: On each and every 
 $100 of the clear market value of all property, and at 
 the same rate for any less amount; on all estates of 
 $10,000 and less, 3 per cent. ; on all estates of over $10,000 
 and not exceeding $20,000, 4 per cent; on all estates over 
 $20,000 and not exceeding $50,000, 5 per cent; and 6n all 
 estates over $50,000, 6 per cent. ; exempting an estate which 
 may be valued at a less sum than $500. This statute is evi- 
 dently modeled after the New York statutes in many re- 
 spects, but it does not seem to have been carefully drafted 
 with regard to legal phraseology, and for this and other rea- 
 sons may unfortunately be the source of much litigation. 
 
 (q) Minnesota. 
 
 Under the constitution of this state, by recent amend- 
 ment, 84 it is provided that there may be, by law, levied and 
 collected a tax upon all inheritances, devises, bequests, leg- 
 acies, and gifts of every kind and description above a fixed 
 and specified sum, of any all natural persons and corpora- 
 tions. Such a tax, above such exempted sum, may be uni- 
 
 83 id. § 1; St. (Bradwell's Ed.) p. 213, § 307. 
 
 84 Adopted November 6, 1894. See note on proposed tax, 2 Minn. 
 Law J. May, 1894, p. 123. This provision was evidently inserted to 
 meet the ruling in State v. Gorman, 40 Minn. 232, 41 N. W. 948. 
 
 (24)
 
 Ch. 1] COLLATERAL INHERITANCE, ETC., TAXES. § 5 
 
 form, or it may be graded or progressive, but shall not ex- 
 ceed a maximum tax of 5 per cent. 
 
 (r) Proposed Legislation in other States. 
 
 The times seem to be propitious for this system of taxa- 
 tion. It is being agitated successfully everywhere, and has 
 few opponents, and it will not be long before it will be adopt- 
 ed by all the American states. Legislation looking to its 
 adoption in r ther states where these laws are desired has 
 been very active during the past four years, and the system 
 has been undergoing improvement in the states where the 
 laws already exist. 
 
 In Illinois, as we have already noticed, a law has been 
 recently passed taxing property passing to collateral and 
 lineal heirs in certain cases, including both the estates of 
 resident and nonresident decedents. In Minnesota and Wis- 
 consin bills were before the legislatures of 1893 and 1895, 
 proposing inheritance taxes, but failed to pass. In Minne- 
 sota, however, as we have seen, a constitutional amendment 
 has been made allowing the legislature to impose a graded 
 tax. 86 
 
 An amendment to the Pennsylvania statute of 1887 was 
 proposed in the legislature of 1891 and 1895, imposing a tax 
 upon lineal heirs, but the bill was defeated in the senate. 
 Similar bills were proposed in Connecticut and Massa- 
 chusetts. Bills have also been pending, but did not succeed, 
 during the present year, before the legislatures of Michigan, 
 Minnesota, and Nebraska, and other states. The federal 
 inheritance or succession tax of 2 per cent, contained in the 
 income tax act of 1894 is inoperative, the whole act having 
 been declared unconstitutional. 87 
 
 8e See State v. Mann, 76 Wis. 469, 45 N. W. 526, and 46 N. W. 51; 
 State v. Gorman, 40 Minn. 232, 41 N. W. 948. 
 
 S7 Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 15 Sup. 
 Ct. 673. 
 
 (25)
 
 § 6 COLLATERAL INHERITANCE, ETC., TAXES. [Ch. 1 
 
 § 6. Canadian Statutes. 
 
 In recent years this system of taxation has also been in- 
 troduced in the Canadian or British provinces, in the form 
 of succession and legacy duties. A short reference to some 
 of these statutes may be instructive. 
 
 (1) Quebec.* 8 
 
 By a statute in force in this province, passed in 1892, 
 amended in 1804, duties are imposed on successions to and 
 transfers of real estate and movable property at the rate of 
 from 1 to 10 per cent. 
 
 Estates that do not exceed $3,000 are exempted. 
 
 The tax is graded as follows: 
 
 Kelating to property passing to those standing in a direct 
 line, a duty of \ per cent, on any sum between $3,000 and 
 $5,000 to 3 per cent, on sums over $200,000. 
 
 In the collateral line the duty is from 3 per cent, to 8 per 
 cent., according to degree of relationship. 
 
 To strangers to the blood a duty of 10 per cent, is imposed. 
 
 (2) Ontario. 
 
 Succession duties are imposed under a statute passed in 
 1892. 89 Estates not exceeding $10,000 and legacies not ex- 
 ceeding $200 are exempt, and direct heirs are taxable only 
 w r hen the whole estate exceeds $100,000. The rate is 2\ per 
 cent, where the property passing is between $100,000 and 
 $200,000, and passes to decedent's father, mother, husband, 
 wife, children, grandchildren, daughters-in-law, and sons-in- 
 law, and 5 per cent, where the property exceeds $200,000. 
 Remote relatives pay 5 per cent, and strangers to the blood 
 
 ss Statute of Quebec, 55 & 5G Vict. 1S92, p. 46, c. 17, amended by 
 57 Vict. (1894) p. 84. 
 89 55 Vict. p. 9, c. 6. 
 (20)
 
 Cll. 1] COLLATERAL INHERITANCE, ETC., TAXES. § 6 
 
 10 per cent. Religious, charitable, and educational be- 
 quests are exempt 
 
 (3) Nova Scotia. 
 
 A duty is assessed on all property, real or personal, capa- 
 ble of being devised or bequeathed, or passing by descent or 
 inheritance. 90 The act does not apply to property under 
 $5,000, or to property given to religious or charitable pur- 
 poses, or to a father, mother, husband, wife, child, brother, 
 sister, daughter-in-law, or son-in-law, where the property so 
 passing does not exceed $25,000. Where the value is in 
 excess of such figures a tax at 1\ per cent, is imposed, and 
 when it exceeds $100,000 5 per cent. 
 
 Where property passes to other lineal relatives than those 
 named, and exceeds $5,000, the excess is taxed at 5 per cent. 
 
 To collateral relatives or strangers to the blood the duty 
 is 10 per cent. 
 
 Legacies that do not exceed $200 are exempted. 
 
 (4) Manitoba. 
 
 Duty is assessed on all property, real or personal, capable 
 of being devised or bequeathed, or passing by inheritance or 
 descent. 91 
 
 Estates not exceeding $4,000 are exempted to the same lin- 
 eal relatives as those under the Nova Scotia statute. 
 
 On all others there is a graded duty of from 1 per cent, 
 up to $25,000 to 10 per cent, on one million or more. 
 
 (5) British Columbia. 92 
 
 Here the act does not apply to estates of less than $5,000, 
 nor to property passing to or for use of father, mother, hus- 
 band, wife, child, grandchild, daughter-in-law, or son-in-law 
 
 of deceased, where the property so passing does not ex- 
 
 • 
 
 »o Laws 1S92, p. 97, c. 6, as amended Laws 1894, p. 59, c 29. 
 »i 56 Vict. pp. 88-93, c. 31. 
 »2 Laws 1894, p. 249, c 47. 
 
 (27)
 
 § 6 COLLATERAL INHERITANCE, ETC., TAXES. [Ch. 1 
 
 ceed $25,000. If it exceeds $25,000, the first $5,000 is ex- 
 empted, and the rest taxed at one-half of the rates herein- 
 after named. 
 
 With these exceptions all other property is taxed as fol- 
 lows: Up to $100,000, 1 per cent.; between $100,000 and 
 $1,000,000, from 2 to 4 per cent; over $1,000,000, it is 5 per 
 cent. 
 (28)
 
 Ch. 2] NATUKE OF TAX AND ITS CONSTITUTIONALITY. § 7 
 
 CHAPTER II. 
 
 NATURE OF TAX AND ITS CONSTITUTIONALITY. 
 
 § 7. General Power of State over Taxation. 
 
 8. Collateral, Direct, or Inheritance Tax is upon the Privilege 
 
 of Succession to Property. 
 
 9. Nature of Tax in New York, under Act of 1S92. 
 
 10. A Tax upon a "Commodity" in Massachusetts. 
 
 11. Under the Constitution of Minnesota. 
 
 12. Under the Federal "Income Tax" of 1894. 
 
 13. Not a Property Tax. 
 
 14. Not a Direct Tax. 
 
 15. Taxing Foreign Real Estate— When Void as Direct Tax. 
 
 16. As to Being a General or Special Tax Law. 
 
 17. Not a Poll Tax. 
 
 18. As to Being an Equal and Uniform Tax. 
 
 19. Double Taxation. 
 
 20. Not a Taking of Private Property, etc 
 
 21. Need not State Object of Tax. 
 
 22. As to Notice and Hearing. 
 
 23. Due Process of Law not Violated. 
 
 24. As to Being Retroactive and Ex Post Facto. 
 
 25. Not a Tax upon Exports or Commerce. 
 
 26. Conflicting with Treaties and Alien Rights. 
 
 27. Government Bonds and State Securities. 
 
 28. United States and Municipalities— Legacies to— Taxable. 
 
 29. Legatee's or Owner's Domicile as to Personal Property and 
 
 its Situs. 
 
 30. Exemptions— When Constitutional. 
 
 31. General Questions as to Jurisdiction. 
 
 § 7. General Power of State over Taxation. 
 
 In all matters appertaining to the domain of taxation, 
 as to the subject-matter of the tax, persons, method of val- 
 uation, and the like, there can be no doubt that, as a gen- 
 eral rule, the power of the several states is practically un- 
 
 (29)
 
 § 8 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 limited within their several jurisdictions, except where re- 
 stricted or controlled by their constitutions, or by the con- 
 stitution and laws of the United States; and it is said that 
 in the exercise of this function the legislature possesses full, 
 absolute, and sovereign power. Where the power of the 
 state has not been thus interdicted, controlled, or surren- 
 dered to tne general government, its exercise rests in the 
 sound discretion of the lawmaking body. 1 
 
 No general principles of law are better settled, or more 
 fundamental, than that the legislative power of every state 
 extends to all property within its borders, and that only so 
 far as the comity of that state allows can such property be 
 affected by the law of any other state. 2 
 
 § 8. Collateral, Direct, or Inheritance Tax is upon 
 the Privilege of Succession to Property. 3 
 
 With these well-settled principles in view, we will now 
 consider briefly the various constitutional objections that 
 have been frequently urged in the state and federal courts 
 against statutes imposing legacy, inheritance, and succes- 
 sion taxes, and it may be asserted that these objections have 
 all finally ten'ded to settle — First, the precise nature of the 
 tax, as imposed by such laws; secondly, the power of the 
 
 i Cooley, Tax'n (2d Ed.) 5-7; McCulloch v. Maryland, 4 Wheat. 
 316; Kirkland v. Hotchkiss, 100 U. S. 491; Eyre v. Jacob (1858) 14 
 Grat. 426; In re McPherson (1887) 104 N. Y. 316, 10 N. E. 685; 
 Railroad Co. v. Pennsylvania (1872) 15 Wall. 300, 319; Appeal of 
 Commonwealth (Bittinger's Estate) 129 Pa. St. 338, 18 Atl. 132; In 
 re Sherwell's Estate (1891) 125 N. Y. 379, 26 N. E. 464; Id., 58 Hun, 
 608, 12 N. Y. Supp. 200; Pullman's Palace Car Co. v. Pennsylvania, 
 141 U. S. 18, 11 Sup. Ct. 876, affirming 107 Pa. St. 156. See an article 
 entitled "The Taxing Power, Its Constitutional Limitations, Re- 
 straints, and Requirements," 42 Alb. Law J. (July 2, 1890) 64. 
 
 2 Pullman's Palace Car Co. v. Pennsylvania, supra. 
 
 8 See, also, pest, § 21. 
 (30)
 
 Cll. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 8 
 
 several states and of the general government, within the 
 well-known restrictions above named, to enact laws impos- 
 ing the same. 
 
 It is now an established doctrine that, so far as the na- 
 ture of the tax is concerned, such taxes are nothing more 
 than a burden, bonus, excise, or assessment, as they have 
 been variously defined, imposed by government upon the 
 passing, devolution, transmission, or privilege of taking 
 or receiving property under wills and intestate laws, wheth- 
 er such property passes to collateral or lineal heirs; and, 
 to prevent a fraudulent or intentional evasion of the tax, 
 provisions have, in nearly all the statutes, also been in- 
 serted, making the tax applicable to all transfers made in- 
 ter vivos or causa mortis intended to take effect at, upon, 
 or after the death of the transferer. The right to impose 
 these taxes is based upon the broad, constitutional power 
 of the state, as a sovereign, to modify, amend, extend, or 
 wholly to repeal the laws governing the transmission of 
 property by will and intestate laws. Such laws confer, at 
 the utmost, a mere privilege upon the heirs or other repre- 
 sentatives of the decedent of succeeding to the estate, and 
 the legislature has the constitutional power to tax the priv- 
 ilege conferred, as it has the right to tax any other privi- 
 leges within its jurisdiction. 4 
 
 These principles will be found to be fully substantiated in 
 the cases referred to in the notes. 5 
 
 4 See chapter 1, § 2. 
 
 e Eyre v. Jacob (185S) 14 Grat. 427; Miller v. Com. (1876) 27 Grat. 
 110; Tyson v. State (1868) 28 Md. 577; State v. Dalrymple (18S9) 70 
 Md. 294, 17 Atl. 82; In re McPherson (1S87) 104 N. Y. 306, 10 N. E. 
 685; In re Swift, 137 N. Y. 77, 32 N. E. 1096; In re Cullum's Estate, 
 5 Misc. Rep. 173, 25 N. Y. Supp. 700, affirmed 76 Hun, 610, 27 N. 
 Y. Supp. 1105, and 145 N. Y. 593, 40 N. E. 163; In re Merriani's Es- 
 tate, 141 N. Y. 484, 36 N. E. 505; Mager v. Grima (1849) 8 How. (U. 
 S.) 490; Scholey v. Rew (1874) 23 Wall. 331; Strode v. Com. (1866) 52 
 Pa, St. 181; Clymer v. Com., Id. 1S9; Com. v. Herman (1885) 16 
 
 (31)
 
 § 8 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 It will also be observed that the various statutory provi- 
 sions define the tax in substantially the same manner as 
 that given above. 6 
 
 In one of the earliest cases decided in Virginia 7 the rule 
 above stated was announced, and has ever since been fol- 
 lowed. Judge Lee, in an admirable opinion, 8 said: "The 
 intention of the legislature was plainly to tax the trans- 
 mission of property by devise or descent to collateral kin- 
 dred; to require that a party thus taking the benefit of 
 a civil right secured to him under the law should pay a 
 certain premium for its enjoyment; and as it was thought 
 just and reasonable that the amount of the premium should 
 bear a certain proportion to the value of the subject en- 
 joyed, it is fixed at a certain per centum upon the value of 
 the whole estate transmitted. * * * The right to take 
 property by devise or descent is the creature of the law, 
 and secured and protected by its authority. The legisla- 
 ture might, if it saw proper, restrict the succession to a de- 
 
 Wkly. Notes Cas. 495; Wallace v. Myers (1SS9) 3S Fed. 184; Pullen v. 
 Commissioners (1872) 66 N. C. 361. See, also, In re Howard (1887) 
 5 Dem. Sur. 483; Williams' Case (1S27) 3 Bland, 186; In re Short's 
 Estate (1851) 16 Pa. St. 63; Carpenter v. Pennsylvania (1S54) 17 
 How. 456; Peters v. Lynchburg (1882) 76 Va. 927; Schoolfield v. 
 Lynchburg (1884) 78 Va. 366; Arnaud's Heirs v. His Executor. 3 La. 
 337. See, also, Minot v. Winthrop (1S94) 162 Mass. 116, 38 N. E. 
 512; distinguishing Curry v. Spencer, 61 N. H. 624; State v. Ham- 
 lin (1S94) 86 Me. 507, 30 Atl. 76; In re Sherrill's Estate (1891) 125 
 N. Y. 379, 26 N. E. 464; In re Romaine, 127 N. Y. 80, 27 N. E. 759; 
 In re Hoffman's Estate (1894) 143 N. Y. 327, 38 N. E. 311; Talmadge 
 v. Seaman, 85 Hun, 242, 32 N. Y. Supp. 906, reversed as In re Sea- 
 man (Oct. 8, 1895; Ct. App.) 41 N. E. 401; State v. Ferris (April, 
 1895) 9 Ohio Cir. Ct. R. 299, affirmed as State of Ohio ex rel. v. Fer- 
 ris, 23 Wkly. Law Bui. (Ohio) July 1, 1895, 349, 352 (the opinion 
 will be published in the N. E. Rep. as soon as handed down). 
 
 6 See statutes of New York, Pennsylvania, Maryland, Connecticut, 
 Maine, Massachusetts, California, Ohio, Illinois, and New Jersey, 
 Appendix, I.-X. 
 
 7 Eyre v. Jacob, 14 Grat. (Va.) 427. 
 
 s Eyre v. Jacob, 14 Grat. (Va.) 428-430. 
 (32)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 8 
 
 cedent's estate, either by will or descent, to a particular 
 class of his kindred, say to his lineal descendants and as- 
 cendants ; it might impose terms and conditions upon which 
 collateral relatives may be permitted to take it, or may to- 
 morrow, if it pleases, absolutely repeal the statute of wills 
 and that of descents and distributions, and declare that, 
 upon the death of a party, his property shall be applied to 
 the payment of his debts, and the residue appropriated 
 to public uses. Possessing this sweeping power over the 
 whole subject, it is difficult to see upon what ground its 
 right to appropriate a modicum of the estate, call it a tax 
 or what you will, as the condition upon which those who 
 take the estate shall be permitted to enjoy it, can be suc- 
 cessfully questioned. That the tax is confined to collateral 
 inheritances and devises to others than those specified pre- 
 sents no difficulty. It is the will of the legislature to make 
 this discrimination, and its discretion upon the subject must 
 be regarded as having been duly and properly exercised." 
 
 So when the question came before the supreme court of 
 the United States in a case involving an alleged conflict 
 with a treaty, Taney, C. J., 9 considered the law to be noth- 
 ing more than the exercise of the power, possessed by every 
 state, of regulating the manner and terms upon which 
 property, real and personal, within its domain, may be 
 transmitted by will or inheritance, and of prescribing who 
 shall and who shall not be capable of taking it. 
 
 And, in Pennsylvania, when the constitutional question 
 finally came before the supreme court of the state in 1866, 10 
 it received elaborate consideration, and was sustained upon 
 
 o Mager v. Grima, 8 How. 490. 
 
 io strode v. Com., 52 Pa. St. 181; Clyiner v. Com., Id. 189. See, 
 also, In re Short's Estate, 16 Pa. St. 63; Com. v. Herman, 16 Wkly. 
 Notes Cas. 211, 212. 
 
 LAW INHER. — 3 (33)
 
 § 8 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 precisely the same grounds as those advanced in Eyre v. 
 Jacob. 11 
 
 The court adopted the opinion of Butler, C. J., in the 
 court below. He said: "The estate does not belong to 
 them [collaterals, etc.], except as a right to it is con- 
 ferred by the state. Independent of the government, no 
 such right could exist. The death of the owner of prop- 
 erty would necessarily terminate his control over it, and 
 it would pass to the first who might obtain possession. 
 The right of the owner to transfer it to another, after death, 
 or of kindred to succeed, is the result of municipal regula- 
 tion, and must, consequently, be enjoyed subject to such 
 conditions as the state sees fit to impose." 12 
 
 Chapman, J., in the same case, considered that, as the 
 legislature had the power to regulate the laws of descent 
 and inheritance, it had also the right, as a condition, of 
 making itself a kind of beneficiary without consideration, 
 and to claim a share of the property, whether exacted as 
 a tax or duty. 
 
 So the same conclusions have been reached in recent 
 cases in Maine, Massachusetts, New York, Pennsylvania, 
 and other states. 13 
 
 11 Supra. 
 
 12 Citing Bl. Comm. bk. 2, pp. 10-13. 
 
 is Minot v. Winthrop (1894) 162 Mass. 113, 116, 38 N. E. 512, dis- 
 tinguishing Curry v. Spencer, 61 N. H. 624; State v. Hamlin (1S94) 
 86 Me. 501, 30 Atl. 76; In re Hoffman's Estate (1894) 143 N. Y. 
 327, 38 N. E. 311; In re Sherwell's Estate (1891) 125 N. Y. 
 379, 26 N. E. 464; In re Swift, 137 N. Y. 77, 32 N. E. 1096; In re 
 Merriam's Estate (1894) 141 N. Y. 484, 36 N. E. 505; In re Cullum's 
 Estate, 5 Misc. Rep. 173, 25 N. Y. Sup. 700, affirmed 76 Hun, 610, 27 
 N. Y. Supp. 1105, and 145 N. Y. 593, 40 N. E. 163, mem.; Small's Estate 
 (1892) 151 Pa. St. 1, 25 Atl. 23. And see elaborate note on the subject 
 in 32 Am. Law. Reg. (N. S.) 364, 366. See, also, In re Coming's Es- 
 tate, 3 Misc. Rep. 160, 23 N. Y. Supp. 285; In re Thomas, 3 Misc. 
 Hep. 388, 24 N. Y. Supp. 713. Contra, Chambe v. Durfee (1S95) 100 
 (34)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 8 
 
 In a recent case in Massachusetts, where the law was 
 upheld upon this ground, 14 the supreme court per Field, 
 C. J., said: "The descent or devolution of property on the 
 death of the owner * * * has always been regulated 
 by law. We have no occasion in these cases to consider 
 whether the legislature has the power to make the com- 
 monwealth the universal legatee or successor of all the prop- 
 erty of all its inhabitants when they die, for the purposes, 
 not only of paying the public charges, but also of distrib- 
 uting the property according to its will among the living 
 inhabitants, or for the purpose of abolishing private prop- 
 erty altogether. We assume that under the constitution 
 this cannot be done, either directly or indirectly; that the 
 legislature cannot so far restrict the right to transmit prop- 
 erty by will or by descent as to amount to an appropriation 
 of property generally; that it cannot impose a tax which 
 shall be equivalent, or almost equivalent, to the value of 
 the property, and cannot so limit the persons who can take 
 as heirs, * * * or legatees; that the great mass of all 
 the property of the inhabitants must become vested in the 
 commonwealth by escheat. The state can take property 
 by taxation only for the public service, and we assume that 
 its right to take property, if any exists, by regulating the 
 distribution of it on the death of the owner, is limited in the 
 same manner, and that this right must be exercised in a rea- 
 sonable way. Under our system of law the right to make 
 a will or testament, and the right to transmit or take prop- 
 erty by descent, are now mainly, if not wholly, regulated by 
 law. 15 If, under the power to regulate the devolution of 
 
 Mich. 112, 58 N. W. G61; State v. Mann (1S90) 76 Wis. 469-478, 45 
 N. W. 526, and 46 N. W. 51; State v. Ferris (April, 1895) supra, p. 32. 
 
 14 See Appendix, IV., Laws Mass. 1891, c. 425; Minot v. Winthrop, 
 supra. 
 
 is Citing Mager v. Grima, 8 How. 490, 493; Brettun v. Fox, 100 
 .Mass. 234. 
 
 (35)
 
 § 8 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 property on the death of the owner, the legislature cannot 
 take away altogether the inheritable quality of property, 
 yet such regulations as are thought reasonable concern- 
 ing the persons who can take or transmit real or per- 
 sonal property, by will or inheritance, have been made in 
 every civilized state. Taxes on legacies and inheritances, 
 or on succession in any form to property on the death 
 of the owner, have generally been considered, not as taxes 
 upon property, but as excises upon the privilege of taking 
 or transmitting property in this way." 
 
 So with regard to the statute of Maine passed in 1893, 16 
 the same result has been reached by the supreme court of 
 that state. 17 
 
 In reviewing the cases, Strout, J., said: "The tax pro- 
 vided for in the statute under consideration is clearly an 
 excise tax. 18 The whole tenor and scope of the act is one 
 of excise, and not a tax upon property, as that term is used 
 in the constitution. It is not laid according to any rule of 
 proportion, but is laid upon the interests specified in the act, 
 without any reference to the whole amount required to be 
 raised for public purposes, or to the whole amount of prop- 
 erty in the state liable to be assessed for public purposes. 
 It is time that the act contains some language indicating a 
 tax upon property; but it should be construed according to 
 its essential principle, object, and effect. Substance, and 
 not form or phrase, is the important thing. All exactions 
 of money by the government are taxes ; but they are not all 
 levied by assessment upon values. * * * The tax, un- 
 der this statute, is, once for all, an excise or duty upon the 
 right or privilege of taking property, by will or descent, un- 
 der the law of the state." 
 
 is Laws 1893, c. 146. See Appendix, V. 
 17 State v. Hamlin, 86 Me. 495, 30 Atl. 76. 
 
 is Seholey v. Rew, 23 Wall. 346. See, also, State v. Ferris, supra. 
 (36)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 8 
 
 In a recent case in Ohio, 19 the court said: "The right of 
 the general assembly, under the provisions of section 1 of 
 article ll, 20 which vests the legislative power of the state 
 in such body to impose excise taxes, must, under the deci- 
 sions of the supreme court of the state, be fully recognized, 
 and, if imposed in accordance with the general principles 
 which underlie the constitution, must be held to be valid." 
 
 With the exception of Curry v. Spencer, 21 the constitu- 
 tionality of the inheritance tax as a tax upon the privilege 
 or right of inheritance or as an excise has not been serious- 
 ly questioned. Even in that case, and in others where 
 these statutes have been declared unconstitutional, it will 
 be found to have been on the ground of a violation of spe- 
 cific provisions of the state constitution, or of the constitu- 
 tion of the United States. 22 
 
 Inasmuch as it is lawful for the state to abolish altogether 
 the privilege of acquiring property within its dominion, by 
 will or inheritance, it is lawful for the legislature to annex 
 any conditions to the privilege which may seem expedient, 
 and do not conflict with the organic law of the state, or with 
 the constitution or laws of the United States. 23 
 
 1 9 State v. Ferris. (April, 1895) supra, p. 32; affirmed 23 Wldy. 
 Law Bui. (Ohio) July 1, 1895, 349, 352. 
 
 20 Const. Ohio. 
 
 2i 61 N. H. 624 (1S82). 
 
 22 See Chambe v. Durfee (1894) 100 Mich. 112, 116, 5S N. W. 661; 
 State v. Gorman (1889) 40 Minn. 232, 41 N. W. 948; Mearkle v. Hen- 
 nepin Co. Com'rs (1890) 44 Minn. 546, 47 N. W. 165; Van Riper 
 v. Happenheimer (Feb., 1894) 17 N. J. Law J. 49; In re Dobermiller 
 (Dec., 1894) Id. 378; State v. Ferris (April, 1895) supra. 
 
 23 Wallace v. Myers, 38 Fed. 1S4; In re Sherwell's Estate (1S91) 
 125 N. Y. 379, 26 N. E. 464; Bell's Gap R. Co. v. Pennsylvania, 134 
 U. S. 237, 10 Sup. Ct. 533. 
 
 (37)
 
 § 9 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 § 9. Nature of Tax in New York, under Act of 
 
 1892. 
 
 So, under recent decisions in New York, construing the 
 transfer tax act passed in 1892, 24 notwithstanding the vari- 
 ous changes in phraseology contained in the new act, the 
 nature of the tax is not changed, and it is still a tax upon 
 the privilege or right of succession by will or intestacy. 25 
 
 Notwithstanding that Gray, J., 20 in construing the act 
 of 1887, endeavored to show that the statute imposed a prop- 
 erty tax, the other judges did not agree with him, as was 
 stated in the opinion : "My brethren are of the opinion that 
 the tax imposed under the act is a tax on the right of suc- 
 cession under a will, or by devolution in case of intestacy, — 
 a view of the law which my consideration precludes my as- 
 senting to.'' 27 
 
 And when the subject was considered later by the court in 
 Be Hoffman, 28 Finch, J., said: "In construing the collateral 
 inheritance tax law as it stood prior to the act of 1892, we 
 had occasion to decide that it imposed a tax upon the right 
 of succession to the property of the testator or intestate, 
 which vested in the successors severally,, and in their re- 
 spective shares or proportions, and not upon the property or 
 estate of the decedent. The shares received in the hands 
 
 24 See Appendix, I., Laws N. Y. 1892, c. 399. 
 
 2 5 in re Hoffman's Estate (1894) 143 N. Y. 327, 38 N. E. 311; In re 
 Swift (1893) 137 N. Y. 77, 32 N.E.109G, affirming (Sup.) 19 N.Y. Supp. 
 292; In re Merriam's Estate (1894) 141 N. Y. 4S4, 36 N. E. 505; In 
 re Cullum's Estate, 5 Misc. Rep. 173, 25 N. Y. Supp. 700, affirmed 
 76 Hun, 610, 27 N. Y. Supp. 1105, and 145 N. Y. 593, 40 N. E. 163, 
 mem.; Talmadge v. Seaman, 85 Hun, 242. 32 N. Y. Supp. 906, re- 
 versed as In re Seaman (Oct. 8, 1895; Ct. App.) 41 N. E. 401. 
 
 26 in re Swift, supra. 
 
 27 137 N. Y. 88, 32 N. E. 1096. 
 2 8 143 N. Y. 327, 38 N. E. 311. 
 
 (38)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 9 
 
 of the recipients were the measures of the right which was 
 subjected to assessment, and the imposed tax could be en- 
 forced personally against the successor charged. * * * 
 The act of 1892 was a revision of the whole law upon the 
 subject. It was passed with knowledge of our decisions, 
 and in view of our construction, and was obviously intended^ 
 in some respects, to compel on our part different conclusions. 
 I do not think there was any such purpose so far as our 
 general doctrine as to the nature of the tax is concerned. 
 There are some changes of phraseology in the more impor- 
 tant sections, but I think it remains true that the tax is 
 one upon the right of succession, levied upon successors in 
 respect to the shares to which they succeed, and not upon 
 the decedent's estate as such." 
 
 The court conceded, however, that while the general rule 
 regarding the nature of the tax had not been modified, the 
 definition of the word "property" contained in 29 the act had 
 the effect of limiting the exemption declared 30 in favor of 
 lineal successors to estates where the aggregate property of 
 the decedent transferred amounts to less than $10,000; and 
 where several lineals succeed to personal property amount- 
 ing in the aggregate to more than $10,000, their interests 
 are taxable, though each beneficiary may succeed to less 
 than that amount. The tax is under this act declared to 
 be upon the aggregate estate or property of the decedent, 
 passing to taxable persons or interests, and not upon the 
 separate share of the devisee or legatee; and where the 
 estate passes to collaterals and strangers to the blood, and 
 is worth $500 or more, it is taxable, notwithstanding the leg- 
 atees take less than that sum. Where it passes to lineal 
 heirs, and the aggregate estate is personalty worth $10,000 
 or more, it is also taxable, although the separate shares are 
 
 »o Section 22, c, 399, Laws 1892. 
 so By section 2, c. 399, Laws 1892. 
 
 (39)
 
 § 11 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 less. 31 This is the rule adopted under the statute of Penn- 
 sylvania. 32 And in New York it overrules the earlier cases 
 under the statutes in existence prior to the act of 1892. 33 
 
 § 10. A Tax upon a "Commodity" in Massachusetts. 
 
 In Massachusetts the constitution provides 34 that the 
 state may levy duties and excises "upon any produce, goods, 
 wares, merchandise, and commodities whatsoever, brought 
 into, produced, manufactured, or being within the common- 
 wealth." 
 
 Under this provision it has been held that the privilege 
 of transmitting and receiving, by will or descent, property 
 on the death of the owner, is a "commodity" within the 
 meaning of the constitution, and that an excise in the na- 
 ture of an inheritance tax may be laid upon it. 35 
 
 § 11. Under the Constitution of Minnesota. 
 
 In Minnesota, by recent amendment to the constitution, 36 
 it is provided that there may be, by law, levied and collected 
 a tax upon all inheritances, devises, bequests, legacies, and 
 gifts of every kind and description, above a fixed and speci- 
 fied sum, of any and all natural persons and corporations. 
 
 si In re Hoffman, 143 N. Y. 327, 38 N. E. 311; In re Hall's Estate 
 (Sup.) 34 N. Y. Supp. G16. 
 
 8 2 Chapter 3, § 41. 
 
 33 See In re Hoffman's Estate, supra; also In re Cager's Will, 
 111 N. Y. 345, 18 N. E. 806; In re Howe, 112 N. Y. 100, 19 N. E. 
 513. 
 
 84 Part 2, c. 1, § 1, art. 4. 
 
 sb Minot v. Winthrop (1894) 162 Mass. 113, 38 N. E. 512. 
 
 se Adopted November 6, 1S94. See 1 St. Minn. 1894, Const, art. 9, 
 § 1. See note on proposed tax, 2 Minn. Law J. (May, 1894) 123. 
 This provision was evidently inserted to meet the ruling in State 
 v. Gorman, 40 Minn. 232, 41 N. W. 948. 
 (40)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 13 
 
 Such a tax, above such exempted sum, may be uniform, or 
 it may be graded or progressive, but shall not exceed a max- 
 imum tax of 5 per cent. 
 
 § 12. Under the Federal "Income Tax" of 1894. 
 
 Under the act of congress passed August 28, 1894, a tax 
 of 2 per cent, was imposed upon all gains, profits, and in- 
 comes received from "money and the value of all personal 
 property acquired by gift or inheritance." 37 While this pro- 
 vision of the act would have given rise to much litigation on 
 account of its obscure and ambiguous language, it was not 
 a proper tax to associate with the income tax system. As 
 the whole act has, however, been declared unconstitutional, 
 no practical purpose is accomplished by the discussion of 
 that part of the act relating to the inheritance tax. 38 
 
 § 13. Not a Property Tax. 
 
 In accordance with the views given above, it has been 
 uniformly held that the tax is not a property tax within 
 the meaning of the various provisions of the federal and 
 state constitutions. 39 
 
 3 7 Section 28. 
 
 as Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 15 Sup. 
 Ct. 673. 
 
 39 See cases, section 2, supra; also, In re Sherwell's Estate (1891) 
 125 N. Y. 379, 26 N. E. 464; In re Knoedler's Estate (1893) 140 N. Y. 
 379, 35 N. E. 601 ; In re Merriarn's Estate (1894) 141 N. Y. 484. 36 N. E. 
 505; In re Cullum's Estate, 5 Misc. Rep. 173, 25 N. Y. Supp. 700, 
 affirmed 76 Hun, 610, 27 N. Y. Supp. 1105, and 145 N. Y. 593, 40 N. 
 E. 1(J3; State v. Hamlin (1894) 86 Me. 495, 30 Atl. 76; In re Tuigg's 
 Estate (Suit.) 15 N. Y. Supp. 548; In re Carver's Estate (1893) 25 
 N. Y. Supp. 991, 5 Misc. Rep. 173; In re Swift (1893) 137 N. Y. 77, 
 88, 32 N. E. 1096, Gray, J., dissenting; In re Small's Estate, 151 Pa. 
 St 1, 25 Atl. 23, 28; State v. Ferris (April, 1895) 9 Ohio Cir. Ct. R. 
 
 (41)
 
 § 13 NATURE OF TAX AND ITS CONSTITUTIONALITY. [C!l. 2 
 
 It was said by Lee, J.: 40 "The property tax which the 
 framers of the constitution were contemplating * * * 
 was the ordinary annually recurring tax for the support of 
 government, laid upon all property whatsoever. They had 
 no reference to casual subjects of taxation occurring irreg- 
 ularly and occasionally, which, though connected with prop- 
 erty, were yet readily to be distinguished in their essen- 
 tial character and features." 41 
 
 And in a recent case in New York, where the constitu- 
 tionality of the act was in question, the same views were 
 announced, and a majority of the court went so far as to 
 hold that it was not important to determine whether the 
 act was to be regarded as imposing a tax on property or 
 upon the succession or devolution of property by will or 
 intestacy; whether one or the other, it was held constitu- 
 tional in all respects. 42 
 
 Whether the object of taxation be regarded as the prop- 
 erty which passes or the person who takes it is a wholly 
 immaterial question. The legislature is not restricted in 
 the selection of its subjects for the raising of revenue for 
 
 299, affirmed as State of Ohio ex rel. v. Ferris, 23 Wkly. Law Bui. 
 (Ohio) July 1, 1895, 349, 352. The opinion will be published in the 
 N. E. Rep. as soon as handed down. See note to 32 Am. Law Reg. 
 (N. S.) 364, where the author says: "In view of the federal de- 
 cisions fixing the status of this form of taxation, it seems absurd to 
 regard succession charges as property taxes. * * * It is upon 
 the idea that the tax is the price paid for the privilege of succession 
 that its constitutionality has been upheld when applied to the 
 transmission of United States securities." 
 
 40 Eyre v. Jacob, supra. And see In re McPherson, 104 N. Y. 
 306, 10 N. E. 685; Com. v. Maury, 82 Va. 883, 1 S. E. 1S5. 
 
 4i See, also, State v. Hamlin, 86 Me. 502, 30 Atl. 76. 
 
 42 in re McPherson, 104 N. Y. 306, 10 N. E. 685; In re Swift, 
 137 N. Y. 77, 32 N. E. 1096; Wallace v. Myers, 38 Fed. 184. See In 
 re Hoffman, 143 N. Y. 327, 38 N. E. 311; In re Howard, 5 Dem. 
 Sur. 483; In re Sherwell's Estate (1S91) 125 N. Y. 379, 26 N. E. 
 464, affirming (Sup.) 12 N. Y. Supp. 200. 
 (42)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 15 
 
 state uses. In such respects it is sovereign, and is with- 
 out other control than the restrictions found in the funda- 
 mental law of the state. 43 
 
 In another case in North Carolina the court seem to have 
 reached the conclusion that the tax was not a property tax, 
 but one upon the succession to property, without being 
 aware of any previous authority upon the question. 44 
 
 So a tax upon a legacy to the United States government 
 is not a tax upon federal property within the prohibitions 
 of the federal constitution. 45 Nor is this a tax upon real or 
 personal property, under the constitution of Maine. 46 
 
 § 14. Not a Direct Tax. 
 
 Nor is it a direct tax upon land, taken by descent, with- 
 in the meaning of the federal constitution, but it is more 
 in the nature of an impost or excise upon the devolution 
 of the estate, or the right to become beneficially entitled 
 thereto, or to the income thereof. 47 
 
 § 15. Taxing Foreign Real Estate — When Void as 
 Direct Tax. 
 
 But as real estate is not drawn to the person or dom- 
 icile of the owner for taxation, it cannot be taxed direct- 
 ly by these laws, outside the jurisdiction where it is situ- 
 
 43 in re Sherwell's Estate, supra. 
 
 4 4 Pullen v. Commissioners of Wake Co. (1S72) 66 N. C. 363. 
 
 45 in re Merriam's Estate (1S94) 141 N. Y. 484, 36 N. E. 505; In 
 re Cullum's Estate, 5 Misc. Rep. 173, 25 N. Y. Supp. 700, affirmed 
 76 Hun, 610, 27 N. Y. Supp. 1105, and 145 N. Y. 593, 40 N. E. 163, 
 mem. See 32 Am. Law Reg. (N. S.) 364, 366. 
 
 46.Const Me. art. 9, § 8; State v. Hamlin (1894) 86 Me. 495, 30 
 Atl. 76. 
 
 47 Scholey v. Rew (1874) 23 Wall. 331. See, also, Strode v. Com., 
 supra; Com. v. Herman, 16 Wkly. Notes Cas. 211, 212; Minot v. Win- 
 
 (43)
 
 § 15 NATURE OP TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 ated. Such a tax is a direct tax upon the thing devised 
 in the hands of the devisee, and it is a tax which the 
 state is powerless to enforce, hence the collateral inher- 
 itance law of Pennsylvania, passed in 1887, which sought to 
 tax real estate situated in Maryland, was, pro tanto, held 
 unconstitutional, or, at least, incapable of enforcement. 48 
 
 In Commonwealth's Appeal, 49 Paxson, J., said: "While 
 it is conceded that the powers of the state for taxing pur- 
 poses are very great, they are necessarily limited to either 
 property or persons within her borders. All property of 
 the citizen within the state may be taxed, and all such 
 property outside the state as is drawn to or follows in law 
 the person or domicile of the owner, such as bonds and 
 mortgages, moneys at interest, etc., no matter where situ- 
 ate. * * * It may be that the state might impose a 
 succession tax upon every citizen of the state who succeeds 
 to either real or personal property, from whatever source 
 derived. This is not such a tax. * * * It is a direct 
 tax upon the thing devised in the hands of the devisee, 
 a tax which the state is powerless to enforce." 50 
 
 throp (1894) 162 Mass. 113, 38 N. E. 512; State v. Hamlin (1894) 
 86 Me. 502, 30 Atl. 76. 
 
 4 8 Appeal of Commonwealth (Bittinger's Estate; 1SS9) 129 Pa. St. 
 338, 18 Atl. 132, distinguishing Com. v. Smith, 5 Pa. St. 142. The 
 court declined to pass upon the constitutional question raised by the 
 title of the act. See Del Busto's Estate, 23 Wkly. Notes Cas. 111. 
 See, also, Com. v. Coleman, 52 Pa. St. 468; Kintzing y. Hutchin- 
 son (U. S. Cir. Ct; 1877) 34 Leg. Int. 365, Fed. Cas. No. 7,834; Dray- 
 ton's Appeal, 61 Pa. St. 172; Miller v. Com., Ill Pa. St. 321, 2 Atl. 
 492; Hood's Estate, 21 Pa. St. 106; In re Hale's Estate (1894) 161 
 Pa. St. 181, 28 Atl. 1071. See Williamson's Estate (1893) 153 Pa. St. 
 508, 26 Atl. 246, and 32 Am. Law Rev. (N. S.) 472, and note by H. 
 W. Page. In re Wolfe's Estate, 19 N. Y. St Rep. 263; In re Swift, 
 137 N. Y. 77, 32 N. E. 1096. 
 
 4 9 Appeal of Commonwealth, supra. 
 
 co But see In re Howard, 5 Dem. Sur. 483; In re McPherson, 104 
 N. Y. 306, 10 N. E. 685. 
 (44)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 16 
 
 Tliis rule does not, however, apply where land outside of 
 the taxing state is directed by will to be converted into per- 
 sonalty. 51 It is then deemed personalty, and in some states 
 is subject to the tax law of the owner's domicile. 02 
 
 The contrary view of this subject has been taken under 
 the New York statutes, but the law of equitable conver- 
 sion has not been thoroughly considered in that state with 
 reference to the inheritance tax. 58 
 
 § 16. As to Being a General or Special Tax Law. 
 
 It has been held to be a general, and not a special, law, 
 and thus constitutional, as such, within the law of Mary- 
 land; 54 while in New York, and some other states, it has 
 been held to be a special tax, but valid as such. 55 
 
 The constitution of Michigan 50 provides that all specific 
 taxes, except those received from certain mining companies, 
 
 bi See the subject considered chapter 4, § 46, subd. (b). 
 
 52 Miller v. Com. (1SS6) 111 Pa. St. 321, 2 Atl. 492; Williamson's 
 Estate (1893) 153 Pa. St. 508, 26 Atl. 246, and 32 Am. Law Rev. (N. S.) 
 472, and note by H. W. Page, Esq., entitled "Collateral Inheritance 
 Tax. Conversion of Land outside of State." See, also, Hale's Es- 
 tate (1S94) 161 Pa. St. 181, 28 Atl. 1071, where the preceding cases 
 are distinguished. See In re Howard, 5 Dem. Sur. 4S6; In re Wheel- 
 er's Estate, 1 Misc. Rep. 450, 22 N. Y. Supp. 1075, 1078, and cases 
 cited. Chapter 4, § 46 (b). Contra, In re Swift, 137 N. Y. 77, 32 N. 
 E. 1096; In re Secor's Estate, N. Y. Law J. (June 22, 1893) p. 779. 
 
 53 See cases supra. Also, In re Raymond (Nov. 19, 1894) 12 N. Y. 
 Law J. 453; Sherrill v. Christ Church (1890) 121 N. Y. 701, 25 N. E. 
 50; In re Curtis, 142 N. Y. 221, 36 N. E. 887; Hale's Estate, supra. 
 
 54 Montague v. State (1S80) 54 Md. 482. 
 
 so In re McPherson (1887) 104 N. Y. 306, 10 N. E. 685; In re Will of 
 Enston, 113 N. Y. 178, 21 N. E. 87; Eyre v. Jacob, 14 Grat. 436; Tyson 
 v. State (1868) 28 Md. 577; State v. Dalrymple, 70 Md. 294, 17 Atl. 82; 
 In re Sherwell's Estate (1891) 125 N. Y. 379, 26 N. E. 464, affirming 
 58 Hun, 608, 12 N. Y. Supp. 200. 
 
 6 6 Article 14, § 1. 
 
 (15)
 
 §18 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 shall be applied in paying interest on certain educational 
 funds and the state debt, until paid, and thereafter shall 
 be added to the primary school interest fund. 
 
 The act of that state, passed in 1893, 57 taxing certain 
 transfers of property by gift or inheritance, and providing 
 that the taxes collected thereunder should be paid into the 
 state treasury, and applied "to the expenses of the state 
 government and to such other purposes as the legislature 
 shall by law direct," was declared unconstitutional as con- 
 flicting with the above provisions. 58 
 
 § 17. Not a Poll Tax. 
 
 It is not within the constitutional prohibition against 
 levying a poll tax, exempting paupers, etc. 
 
 5 9 
 
 § 18. As to Being an Equal and Uniform Tax. 
 
 Nor does a law imposing such tax conflict with a general 
 constitutional requirement that all taxes shall be equal and 
 uniform within the state, or apportioned and assessed 
 equally. 61 
 
 67 Act No. 205, Pub. Acts 1893, p. 344. 
 
 ss Chambe v. Durfee (1894) 100 Mich. 112, 58 N. W. 661. 
 
 6 9 Tyson v. State, 28 Md. 577. 
 
 6i Eyre v. Jacob (1858) 14 Grat. 427; Tyson v. State, 28 Md. 577; 
 Pullen v. Commissioners of Wake Co. (1872) 66 N. C. 361; Peters v. 
 City of Lynchburg (1882) 76 Va. 927; Schoolfield v. City of Lynchburg 
 <1884) 78 Va. 367; State v. Hamlin (1894) 86 Me. 502, 30 Atl. 76; Minot 
 v. Winthrop (1894) 162 Mass. 116, 38 N. E. 516. Contra, Curry v. 
 Spencer, 61 N. H. 630, where Blodgett, J., criticising Eyre v. Jacob 
 and Tyson v. State, supra, said: "It is apparent that these decisions 
 can have no weight in New Hampshire; and immunity from dispro- 
 portional taxation being expressly reserved in our bill of rights, and 
 the power of proportional taxation only being granted to the legis- 
 lature by the constitution, we are unaware of any ground upon which 
 (46)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 18 
 
 Those provisions contemplate only the general recurring 
 assessment upon the same property, and do not include 
 occasional, exceptional, and special subjects and modes of 
 taxation, like the inheritance and other privilege taxes. 62 
 
 The terms "equal 1 ' and "uniform" apply only to a direct 
 tax on property, and do not limit the power of the legis- 
 lature as to the object of the tax. They are intended to pre- 
 vent an arbitrary tax on property, according to kind or 
 quality, without regard to value. 63 
 
 While providing for a uniform mode of taxation on prop- 
 erty, it was not the purpose of the constitution to prohibit 
 any other species of tax, but to leave the legislature the pow- 
 er to impose such other taxes as the interests of the govern- 
 ment might require. 64 
 
 Where the tax is made to apply to every estate which is 
 bequeathed or devised to, or inherited by, the person speci- 
 fied in the act, it is equal, and free from objections on legal 
 
 the statute under consideration can be upheld; for, if it is to be re- 
 garded as a tax on property, it is open to the objection of unequal 
 and double taxation, and if it is to be regarded as a tax on a civil 
 right or privilege it is discriminating and disproportional." It may 
 be said that this decision is in conflict with every well-considered ad- 
 judication upon this subject. See State v. Ferris (April, 1S95) 9 
 Ohio Cir. Ct. R. 299, affirmed as State ex rel. v. Ferris, 23 Wkly. 
 Law Bui. (Ohio) July 1, 1895, 349, 352. Opinion will be published in 
 N. E. Rep. as soon as handed down. 
 6 2 State v. Hamlin, supra, 
 
 63 id.; decisions supra. 
 
 64 Tyson v. State, 28 Md. 577; State v. Dalrymple, supra; Bell's 
 Gap R. Co. v. Pennsylvania, 134 U. S. 237, 10 Sup. Ct. 533. A statute 
 of Minnesota requiring, as a condition precedent to probate proceed- 
 ings for the settlement of estates, the payment to the county treasurer 
 of specified sums arbitrarily prescribed with reference to the value 
 of the estate, held unconstitutional, being contrary to the requirement 
 of equality of taxation and the dispensation of justice freely and 
 without purchase. State v. Gorman, 40 Minn. 2;J2, 41 N. W. 948; 
 Sfate v. Mann, 76 Wis. 469, 45 N. W. 530; Bradford v. Jones, 1 Md. 
 368; Harrison v. WilUs, 7 Heisk. 35. 
 
 (47) .
 
 § 18 NATURE OP TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 grounds. 85 So in Minot v. Winthrop ea the court said, in refer- 
 ring to the Massachusetts statute: "The tax imposed by the 
 statute we are considering is said to be unequal because it 
 is not imposed upon all estates, and upon all heirs, devisees, 
 legatees, and distributees. To make a distinction between 
 collateral kindred or strangers in blood and kindred in the 
 direct lines in reference to the assessment of such a tax, 
 either by exempting the kindred in the direct line, or by 
 imposing on collaterals and strangers a higher rate of tax- 
 ation, has the sanction of nearly all states which have levied 
 taxes of this kind. It has a sanction in reason, for the 
 moral claim of collaterals and strangers is less than that of 
 kindred in the direct line, and the privilege is therefore 
 greater. The tax imposed by this statute is uniformly im- 
 posed upon all estates and all persons within the descrip- 
 tion contained in it, and the tax is not plainly and grossly 
 oppressive in amount." 
 
 The direct inheritance tax of Ohio 67 has been declared 
 unconstitutional, as violating the rule of uniformity and 
 equality, in that the exemptions under the act were restrict- 
 ed to estates of a certain class, and did not include all per- 
 sons. 
 
 Smith, J., in the lower court, said: "But all laws com- 
 prising such excise taxes must, in accordance with the 
 reason and spirit of the constitution, be uniform in their 
 operation. 68 * * * Nor can they be upheld if substan- 
 tially and necessarily unequal and unjust. In our judg- 
 ment, the statute in question is in contravention of this 
 principle. It provides ° 9 that 'when the value of the entire 
 property of such decedent exceeds the sum of $20,000, and 
 
 6 5 in re Sherwell's Estate, 125 N. Y. 379, 26 N. E. 464. 
 ee Supra. 
 
 «7 Appendix, VI. c, Act 1894 (91 Ohio Laws, p. 166.) 
 6 8 Citing Northern Indiana R. Co. v. Connelly, 10 Ohio St. 160. 
 6 9 Laws Ohio 1894, p. 166, § 1, Appendix, VI. b. 
 (48)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 18 
 
 does not exceed the sum of $r>0,000, the tax shall be one 
 per cent.; when it exceeds f 50,000, and does not exceed 
 $100,000, one and one-half per cent.'; and then it pro- 
 ceeds to fix higher rates of taxes on higher grades. There 
 is no exemption to all persons of taxes on property of 
 the value of $20,000, but if the amount or value of the 
 property which so passes is less than $20,000 no tax is 
 imposed thereon. But if the amount or value of the es- 
 tate be over $20,000, say $20,001, then the tax must be 
 paid on the whole sum, and not simply on the amount over 
 $20,000. And thus in the first case the person taking 
 the estate would receive the whole amount thereof, while in 
 the other case he would receive but $19,800, which seems 
 manifestly unequal and unjust. If the statute exempted 
 $20,000 (or any other sum) of every estate from taxation, it 
 would, in our judgment, be equal and valid, even in impos- 
 ing a graded tax, as it does. But, as it stands, we are of 
 the opinion that it violates the principle of uniformity and 
 equality which must be found in all laws imposing taxes 
 of every kind." 70 But such act was held not in conflict 
 with the constitution, 71 providing that "all laws of a general 
 nature shall have a uniform operation throughout the 
 state." 72 Upon appeal to the supreme court,* Burke, J., 
 held that the act, by its exemption from taxation of the 
 right to receive or succeed to estates not exceeding $20,000 
 in value, and taxing the whole right of receiving or succeed- 
 ing to estates which exceed that sum in value, and in tax- 
 ing at a higher rate per centum the right to receive or suc- 
 ceed to estates of larger value than to estates of smaller 
 value, was in conflict with section 2 of the bill of rights of 
 the constitution of Ohio, declaring that "all political power 
 is inherent in the people. Government is instituted for 
 their equal protection and benefit"; and the whole act was 
 
 7« State v. Ferris, supra. ?2 State v. Ferris, supra. 
 
 7i Const. Ohio, art. 11, § 26. * State v. Ferris, supra. 
 
 LAW IXHER. — 4 (49)
 
 §19 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 therefore declared unconstitutional and void. It was also 
 held that the first section of the fourteenth amendment to 
 the federal constitution, providing that no state shall "deny 
 to any person * * * the equal protection of the laws," 
 was not broader than the second section of the state bill of 
 rights. A statute somewhat similar to that of Ohio is now 
 in force in Illinois, having gone into effect July 1, 1895. 73 
 
 § 19. Double Taxation. 
 
 There is nothing in the federal constitution that forbids 
 double or unequal taxation by a state. 74 Hence, the privi- 
 lege under these laws may be taxed, although the property 
 is also taxed; 75 and it makes no difference that the same 
 tax is imposed upon the succession in another state. 76 
 
 The result of double taxation, however, is one which the 
 courts are inclined to avoid, whenever it is possible, within 
 reason, to do so. 77 
 
 73 See statute, Appendix, X. 
 
 74 Davidson v. New Orleans, 96 U. S. 97-106; In re Enston's Will, 
 113 N. Y. 1S2, 21 N. E. 87; Beinis v. Boston, 14 Allen, 368; People 
 v. Coleman, 119 N. Y. 137, 23 N. E. 488. As to double taxation, see 
 5 Political Science Quarterly (Dec, 1800) 637. 
 
 7 5 Eyre v. Jacob, 14 Grat. 427. Contra, Curry v. Spencer, 61 N. H. 
 630. 
 
 7c Com. v. Sharpless, 2 Chest. Co. Rep. (Pa.) 246; Com. v. Schu- 
 macher, 9 Lancaster Bar (Pa.) 199. But see In re Enston's Will, 
 supra; Bonaparte v. Tax Court, 104 U. S. 595; In re Strong, 17 N. 
 J. Law J. 234. 
 
 77 in re .Tames (1894) 144 N. Y. 6, 38 N. E. 961, affirming 77 Hun, 
 213, 28 N. Y. Supp. 351, and 6 Misc. Rep. 206, 27 N. Y. Supp. 288. See 
 In re Coleman's Estate (1S93) 159 Pa. St. 231, 28 Atl. 137. 
 (50)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIOiNALITY. § 21 
 
 § 20. Not a Taking of Private Property, etc. 
 
 Nor is it a taking of private property without compensa- 
 tion. 78 
 
 The statute of Maine 70 does not conflict with the state 
 constitution 80 prohibiting the taking of private property for 
 public uses without just compensation. The latter provi- 
 sion is limited to the exercise of the right of eminent do- 
 main, and does not extend to the subject of taxation. 81 
 
 Nor does this statute conflict with the constitution of the 
 state, 82 that no person shall be deprived of his property or 
 privileges but by judgment of his peers, or by the law of the 
 land. 83 
 
 The provisions of the New York constitution, that no per- 
 son shall be deprived of property without due process of 
 law, nor property taken for public use without just compen- 
 sation, have no application to the exercise of the taxing 
 power. 84 
 
 § 21. Need not State Object of Tax. 
 
 It is not necessary that the act should state the object of 
 the tax, or to what purpose it is to be applied, under the 
 New York constitution, as that provision was only intended 
 to apply to the annually recurring taxes known at the time 
 of the constitution's adoption. 85 In Michigan, however, a 
 
 ts strode v. Com. (1866) 52 Pa. St. 1S6; People v. Mayor, etc., of 
 Brooklyn, 4 N. Y. 419. 
 
 7 8 Appendix, V. 
 so Article 1, § 21. 
 
 8i State v. Hamlin (1894) 86 Me. 501, 30 Atl. 76. 
 
 82 Article 1, § 6. 
 
 83 State v. Hamlin, supra. 
 
 84 People v. Mayor, etc., of Brooklyn, supra. 
 
 8 5 in re McPkerson, 104 N. Y. 306, 10 N. E. 6S5; s. p., Eyre v. Jacob, 
 14 Grat. 427. 
 
 (51)
 
 § 22 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 statute was held void for failure to distinctly state the tax 
 and the object to which it was to be applied. 86 And in New 
 Jersey the statutes 87 have been declared unconstitutional 
 and void so far as they attempt to tax devises of land, for 
 the reason that the titles of the acts do not express a pur- 
 pose to include real estate. 88 The defect indicated is, how- 
 ever, avoided by the act of 1894,f but this statute does not 
 apply to property passing by will before the act was ap- 
 proved.J 
 
 § 22. As to Notice and Hearing. 
 
 But parties against whom it is sought to assess the tax 
 have a constitutional right to notice, and to an opportunity 
 for a hearing upon the assessment. It would seem that all 
 the statutes upon this subject sufficiently provide for such 
 notice and hearing, so as to obviate any constitutional ob- 
 jection, either under the state constitutions or under the 
 fourteenth amendment to the federal constitution. 89 
 
 The statute of Maine 90 does not conflict with the latter 
 provision. 
 
 "The act 91 provides for an appraisal of the estate subject 
 
 se Const. Mich. art. 14, § 14; Cbanibe v. Durfee (1S94) 100 Mich. 
 112, 58 N. W. 661. 
 
 87 See Appendix, II. 
 
 8s Van Riper v. Happenheimer, 17 N. J. Law J. (Feb., 1S94) 49; 
 In re Dobermiller, Id. (Dec., 1894) 378. 
 
 t Appendix, II. 
 
 t State v. Hancock (N. J.; 1895) 32 Atl. 689. 
 
 ss Cooley, Tax'n (2d Ed.) 362, 363; In re McPherson, 104 N. Y. 306, 
 10 N. E. 685; Wallace v. Myers, 38 Fed. 184, citing Railroad Co. v. 
 Richmond, 96 U. SS. 521; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 
 357; Wurts v. Hoagland, 114 U. S. 606, 5 Sup. Ct. 1086; Kentucky 
 Railroad Tax Cases, 115 U. S. 321, 6 Sup. Ct. 57; State v. Hamlin 
 (1894) 86 Me. 507, 30 Atl. 76. 
 
 so See Appendix, V. 
 
 si Section 12, Appendix, V 
 (52)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 23 
 
 to the excise, upon application to the probate court, by the 
 state assessors, or any person interested in the estate; and 92 
 the probate court having jurisdiction of the settlement of 
 the estate is authorized to 'hear and determine all questions 
 in relation to said tax that may arise,' etc., 'subject to ap- 
 peal as in other cases.' These provisions fully secure the 
 rights of all parties interested, and satisfy the requirements 
 of 'due process of law.' " 93 
 
 § 23. Due Process of Law not Violated. 
 
 Nor do these statutes violate the provisions of the four- 
 teenth amendment to the constitution, prohibiting any state 
 from depriving any person of life, liberty, or property with- 
 out due process of law. 94 
 
 The provisions of the New York constitution that no per- 
 son shall be deprived of property without due process of 
 law, nor property taken for public use without just compen- 
 sation, have no application to the exercise of the taxing 
 power. 95 
 
 The statute of Maine 9S does not conflict with the state 
 constitution, 97 providing that no person shall be deprived 
 of his property or privileges but by judgment of his peers, 
 or by the law of the land. 98 
 
 Nor does this statute conflict with the provision of the 
 fourteenth amendment to the constitution of the United 
 States, providing that "no state shall make or enforce any 
 
 02 Section 13. 
 
 93 state v. Hamlin (1894) 86 Me. 507, 30 Atl. 76. 
 s* In re McPherson, 104 N. Y. 30(5, 10 N. E. 685; State v. Hamlin, 
 supra. 
 95 People v. Mayor of Brooklyn, 4 N. Y. 419. 
 9 6 Appendix, V. 
 9t Article 1, § 6. 
 9s State v. Hamlin, supra 
 
 (53)
 
 § 24 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 law which shall abridge the privileges or immunities of citi- 
 zens of the United States." " 
 
 In Ohio, however, under the direct inheritance tax, 100 it 
 has been recently held that the act was invalid, as being in 
 contravention of that part of the United States constitu- 
 tion 101 which provides that no state shall "den} T to any per- 
 son within its jurisdiction the equal protection of the 
 laws." 102 
 
 § 24. As to Being Retroactive and Ex Post Facto. 
 
 In Maryland an interesting question 103 arose as to the 
 constitutional effect of a statute of that state releasing the 
 rights of the state to claims for the tax against husbands, 
 who, under a previous law, had been made liable where such 
 claims had not been actually paid. It was contended by 
 the state that the act was retroactive and unconstitutional, 
 as against the state, as violating the rule of equality be- 
 tween those husbands who had actually paid the tax before 
 the repealing law was passed, and those who had refused, 
 and thus obtained its benefits. 
 
 But the court said: "If the legislature is satisfied that a 
 given tax is no longer necessary, that it is unjust, that a 
 change of circumstances requires its repeal, that public pol- 
 icy demands that the repeal shall be prompt, should give 
 instant relief, and should therefore extend to all who have 
 not yet actually paid, the legislature has, in its discretion 
 the constitutional right so to enact, without being at the 
 same time compelled to embarrass the treasury by a sweep- 
 ing restriction to all who had paid the tax from the time of 
 
 »9 State v. Hamlin, supra. 
 
 ioo See Appendix, Laws Ohio 1894. 
 
 loi Article 14, § 1. 
 
 102 state v. Ferris, supra, pp. 47, 49. 
 
 103 Montague v. State, 54 Md. 486. 
 (54)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 21 
 
 its imposition. Under some circumstances such a retro- 
 spective exemption might be highly expedient, and under 
 others not. The question is of policy, and not of law for 
 the courts." 104 
 
 The legislature may release property which has been as- 
 sessed for taxation. The power over the subject is unlim- 
 ited, and can be exercised in any way and at any time dur- 
 ing the proceedings for taxation. 105 
 
 In Pennsylvania an amendatory statute of 1850 (amend- 
 ing Act 1826) provided that the estates of persons domiciled 
 there who died before the passage of the act of 1850 ''shall 
 be so construed as to relate to all persons who have been 
 at the time of their decease or now may be domiciled within 
 this commonwealth, as well as to estates." It was held 
 that the act was retroactive, but constitutional as to estates 
 within the state, and that under it stocks and moneys held 
 abroad were liable to the tax, to be paid out of the assets 
 in the hands of the executors. 106 
 
 In Short's Case 107 the court said : "The argument has been 
 
 104 Montague v. State, 54 Md. 48(3. Many retroactive or retrospec- 
 tive exemptions have been made in New York, particularly as regards 
 adopted children, and those standing in the so-called relation of par- 
 ent and child. Laws 1SS5, c. 483, § 1; Laws 1887, c. 713; Laws 1889, 
 c. 479. Also, under the act of 1891, c. 215; Laws 1S92, c. 169; Laws 
 1892, c. 399, § 1, subd. 3; Id. § 2. See these retroactive clauses dis- 
 cussed in chapter 6, § 58, subds. c, 3f. Regarding bishops and 
 religious corporations see chapter 3, "Exemptions," § 35. 
 
 105 people v. Commissioners of Taxes & Assessments. 142 N. Y. 
 348, 37 X. E. 116; Roman Catholic Church of the Transfiguration v. 
 A'iles (Sup.) 33 N. Y. Supp. 213, S6 Hun, 221, construing the retro- 
 active clause of Laws 1892, c. 169. 
 
 loo in re Short's Estate (1851) 16 Pa. St. 63; Carpenter v. Pennsyl- 
 vania, 17 How. 456; Com. v. Smith. 5 Pa. St. 143. See, also, In re Al- 
 exander's Estate, 3 Pa. Law J. Rep. 87; In re Ewing, 1 Cromp. & 
 J. 151; Orcutt's Appeal, 97 Pa. St. 1S4. But see Pullen v. Com- 
 missioners (1872) 66 N. C. 361. 
 
 107 Supra. 
 
 (55)
 
 § 24 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 that we ought not to give the act a retroactive effect unless 
 we are forced to do so by the stringency of the words. The 
 principle is a sound one where retroaction would work an 
 injustice, * * * but certainly no injustice is done by 
 increasing a tax to meet an increase of the public burden." 
 
 Short's Estate subsequently came before the supreme 
 court of the United States. 108 It appeared that decedent 
 was a citizen of the state, had died in 1849, and his resident 
 executor claimed that certain bonds, not within the state, 
 and legacies to foreigners, were not taxable, and that the 
 act of 1850 was retroactive, upon the ground that the rights 
 of the legatees vested at decedent's death. It was also 
 urged that the law was ex post facto. The latter conten- 
 tion the court overruled, with the observation that it only 
 applied to criminal cases. In passing upon the other objec- 
 tion the court said: 109 "Until the period for distribution ar- 
 rives, the law of the decedent's domicile attaches to the 
 property, and all other jurisdictions refer to the place of 
 domicile as that where the distribution should be made. 
 The will of the testator is proven there, and his executor re- 
 ceives his authority to collect the property by the recogni- 
 tion of the legal tribunals of that place. * * * The 
 rights of the donee are subordinate to the conditions, formal- 
 ities, and administrative control prescribed by the state in 
 the interest of its public order, and are only irrevocably es- 
 tablished upon its abdication of this control at the period 
 of distribution. If the state, during this period of adminis- 
 tration and control by its tribunals and their appointees, 
 thinks fit to impose a tax upon the property, there is no ob- 
 stacle in the constitution and laws of the United States to 
 prevent it. 110 Thus, there is nothing to prevent the state 
 from taxing estates undistributed, even if the act is passed 
 
 108 s u b nom. Carpenter v. Pennsylvania (1854) 17 How. 456. 
 loo Page 462. 
 
 no Citing Ennis v. Smith, 14 How. 400; In re Ewing, 1 Cromp. & J. 
 (56)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 25 
 
 subsequently to date of death. This is the English pule. 111 
 In a recent case in Pennsylvania, however, the court 
 seemed inclined to doubt whether, if the collateral act of 
 1887 (consolidating the law of that state) assumed to tax 
 any other or different estates than those provided for in 
 previous statutes, it would be constitutional; but the objec- 
 tion seems only to have referred to a requirement of the 
 constitution that the title of the act should clearly indicate 
 the subject-matter of the bill. 112 
 
 The claim of the state for taxes is not suspended until 
 the estate of a deceased person is administered, or bound 
 to share with that of creditors in the distribution of the pro- 
 ceeds. The state may enforce it to the exclusion of all 
 other creditors. 113 
 
 § 25. Not a Tax upon Exports or Commerce. 
 
 These statutes have also been before the federal supreme 
 court, upon the claim that a statute of Louisiana taxing 
 foreign legatees violated the rights of aliens under treaty 
 between the federal government and foreign powers, and 
 conflicted with the constitution, but it was held that the 
 power of the state to impose such a tax upon foreign leg- 
 atees was similar to that which the state exercised in tax- 
 ing its own citizens; that the state, in allowing aliens to 
 inherit, conferred a privilege which it could tax, or withdraw 
 totally; and that aliens were not entitled to exemption, un- 
 
 151; Attorney General v. Napier, 6 Exch. 217; Lawrence v. Kitter- 
 idge, 21 Conn. 577; 1 Barb. Ch. 180. 
 
 m See cases supra, and Attorney General v. Middleton, 3 Hurl. & 
 N. 125; Cooley, Tax'n (2d Ed.) 376; chapter 1, § 4, note 29. 
 
 112 Cooper's Estate (Appeal of Commonwealth) 127 Pa. St. 441, 17 
 Atl. 1094, affirming 5 Pa. Co. Ct. R. 271; Bittinger's Estate (Appeal 
 of Commonwealth; 18S9) 129 Pa. St. 338, 18 Atl. 132. See section 9, 
 supra. 
 
 us Dunlap v. Gallatin Co., 15 111. 7; Hil. Tax'n, § 66. 
 
 (57)
 
 § 26 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 der the constitution, 114 as being a tax upon commerce or 
 exports. 115 
 
 § 26. Conflicting with Treaties and Alien Rights. 
 
 The Louisiana statute also came before the supreme court 
 in 1856, 116 when it was contended that it conflicted with 
 the treaty of France made in 1853, 117 which stipulated 
 against the imposition of inheritance taxes; but, as the de- 
 cedent died in 1848, the court held that the treaty could not 
 divest rights accruing before it went into effect, and it was 
 doubted, under the express terms of the treaty whether the 
 federal government could control the succession laws of 
 the state, in the absence of an act of the state repealing the 
 law, and accepting the provisions of the treaty. 118 
 
 But it has since been held by the supreme court that, 
 where the state law conflicts with a treaty between the fed- 
 eral government and a foreign power, such law becomes pro 
 tanto inoperative, as against citizens of such foreign power,, 
 and the treaty being the supreme law of the land, and retro- 
 active as well as prospective, the fact that the law existed 
 before the treaty went into effect would make no differ- 
 ence. 119 
 
 The treaty of 1853 between France and the United States 
 does not exempt French citizens from the inheritance tax,, 
 
 114 Sections 8-10 of article 1. 
 
 us Mager v. Grima (1849) 8 How. 400, affirming 12 Rob. (La.) 584. 
 See Arnaud's Heirs v. His Executor, 3 La. 337; Quessart's Heirs v. 
 Canonge, Id. 5G0, and Dallinger v. Eapello, 14 Fed. 33. 
 
 iig Prevost v. Greneaux, 19 How. 1, affirming 12 La. Ann. 577. 
 
 ii7 See In re Bondon, N. Y. Law J. March 1, 1892. 
 
 us See, also, Frederickson v. Louisiana (1859) 23 How. 445; Suc- 
 cession of Schaffer, 13 La. Ann. 113. 
 
 us Succession of Dufour, 10 La. Ann. 391; Succession of Amat, 18 
 La. Ann. 403. Succession of Crusius, 19 La. Ann. 369; Hauenstein 
 v. Lynhain, 100 U. S. 4S3; Cooley, Tax'n (2d Ed.) 100. 
 (58)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 27 
 
 as imposed under the laws of New York. 120 The treaty pro- 
 vides that: "In all states of the Union whose existing laws 
 permit it, so long as, and to the same extent as, the said 
 laws shall remain in force, Frenchmen shall enjoy the 
 right of possessing personal and real property by the same 
 title and in the same manner as the citizens of the United 
 States. They shall be free to dispose of it as they may 
 please, either gratuitously, or for value received, by dona 
 tion, testament, or otherwise, just as those citizens them- 
 selves; and in no case shall they be subject to taxes on 
 transfer, inheritance, or any others, different from those 
 paid by the latter, or to taxes which shall not be equally im- 
 posed." 
 
 § 27. Government Bonds and State Securities. 
 
 Perhaps one of the best illustrations of the exact nature 
 of this tax, as being one that is imposed upon the privilege 
 of succeeding to property, and not upon the property per se, 
 which is merely used as a medium for ascertaining the value 
 so as to fix the amount of the tax, 121 is that of government 
 bonds and state stocks, or securities declared by general 
 laws to be exempt from all taxation. These securities have 
 been, nevertheless, subjected to the collateral inheritance 
 tax. 122 
 
 120 in re Bondon, N. Y. Law J. March 1, 1892. 
 
 121 Wallace v. Myers, 3S Fed. 184. In re Swift, 137 N. Y. 77, 32 
 N. E. 109G. "In view of the federal decisions fixing the status of 
 this form of taxation, it seems absurd to regard ' succession charges 
 as property taxes. * * * It is upon the idea that the tax is the 
 price paid for the privilege of succession that its constitutionality has 
 been upheld when applied to the transmission of United States secu- 
 rities." 32 Am. Law Reg. (N. S.) 366. 
 
 122 in re Carver's Estate (1893) 4 Misc. Rep. 592, 25 N. Y. Supp. 991; 
 In re Tuigg's Estate (Suit.) 15 N. Y. Supp. 548; In re Ludlow's Estate 
 (Suit.) 25 N. Y. Supp. 989. The statute of West Virginia (Laws 1SS7, 
 p. Ill, c. 31) expressly taxes all public securities for money of every 
 
 (59)
 
 § 27 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 One of the earliest cases upon this subject is that of 
 Strode v. Com., 123 where the state sought to collect a col- 
 lateral tax upon an estate, a part of which was composed 
 of government bonds devised to collaterals; and the right 
 of the state to collect the tax upon the value of these bonds 
 was upheld upon the familiar grounds stated above, and 
 within the ruling of the federal courts. 124 Chapman, P. J., 
 said: 125 "But the view entertained by the court is that no 
 act of congress impinges upon the collateral inheritance 
 law. This law contemplates the imposition of no tax such 
 as congress intended to prohibit. It is called a 'tax' or 
 'duty,' but has little or no analogy to a tax, in the usual 
 acceptation of the term. It cannot be regarded as a pen- 
 alty, exactly, 126 but it approximates that as nearly as it does 
 an ordinary tax." Woodward, C. J., 127 in giving the opin- 
 ion of the supreme court, said: "Neither the prohibitory 
 clause of the act of congress of 1862, nor any of the prin- 
 ciples of decision against state authority to tax that which 
 federal authority has exempted from taxation, have any 
 
 kind. Also that of Maryland, Appendix, VIII. The United States su- 
 preme court has frequently held that a state statute imposing a tax 
 upon bank capital invested in United States bonds is unconstitutional, 
 but it seems these were cases of v a property tax purely, and have no 
 application to a tax of this character. People v. Tax Com'rs of City 
 and County of New York, 2 Black, 620; Bank Tax Case, 2 Wall. 200; 
 Banks of New York v. Mayor, 7 Wall. 16. 
 
 123 52 Pa. St. 181; Clymer v. Com., Id. 189. See, also, In re How- 
 ard, 5 Dem. Sur. 483; Wallace v. Myers, supra; In re Van Kleeck, 
 sub nom. Sherrill v. Christ Church, 121 N. Y. 701, 25 N. E. 50. They 
 have also been held taxable under the New York act of 1892, c. 399. 
 In re Carver's Estate, supra; In re Ludlow's Estate (Surr.) 25 N. 
 Y. Supp. 9S9. 
 
 124 Citing McCulloch v. Maryland, 4 Wheat. 316. 
 
 125 Page 186. 
 
 126 it is not a penalty or forfeiture. Arnaud's Heirs v. His Execu- 
 ltor, 3 La. 337; In re Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 239. 
 
 127 52 Pa. St. 189, supra. 
 (60)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 27 
 
 application here. The federal government has not prohib- 
 ited the state from prescribing rules of inheritance and suc- 
 cession to estates of decedents, and it would be a grievous 
 mistake of legislative and judicial authority to apply it with 
 such effect. 128 
 
 Upon the same principle, the tax was held rightfully im- 
 posed upon a collateral who was a devisee of certificates 
 issued by the state of Pennsylvania for a state loan, which 
 were declared by the law under which they were issued to 
 be exempt from state, municipal, or local taxation; 129 and 
 in a recent case in New York the law of that state was up- 
 held by the United States circuit court, where the state 
 sought to assess taxes upon government bonds passing to 
 collaterals under a decedent's will. 130 
 
 In the Wallace Case, supra, it was contended that the 
 fact that the tax was assessed upon the value of the bonds 
 showed that it was a property tax, and that it was therefore 
 void. 131 The circuit court said: "The circumstance that 
 incidentally, under such a statute, such bonds may have to 
 be valued, in order to ascertain the amount of the tax, does 
 not affect its essential nature, as one upon the privilege, and 
 not upon the bonds. * * * Such a tax is no more upon 
 the bonds than an income tax is one upon the property out 
 of which the income is derived, or an excise tax is one upon 
 the articles manufactured or sold. The bonds are the sub- 
 ject of the appraisal, but the privilege is the subject of the 
 tax." 132 
 
 128 See, also, In re Tuigg's Estate, supra. 
 
 129 Coin. v. Herman (1SS5) 16 Wkly. Notes Cas. 210. 
 
 130 Wallace v. Myers (1889) 38 Fed. 1S4, citing Mager v. Grima, 8 
 How. 490; Carpenter v. Pennsylvania, 17 How. 456. See In re How- 
 ard, 5 Dem. Sur. 483; In re Tuigg's Estate (Suit.) 15 N. Y. Supp. 548; 
 Sherrill v. Christ Church, 121 N. Y. 701, 25 N. E. 50. 
 
 131 See Pullen v. Coin'rs (1S72) 66 N. C. 363, where a like objec- 
 tion was overruled. 
 
 132 Citing Society for Savings v. Coite, 6 Wall. 594; Hamilton Co. 
 
 (61)
 
 § 28 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Cll. 2 
 
 § 28. United States and Municipalities— Legacies 
 to — Taxable. 
 
 So, under the New York statutes, it is held that, the tax 
 being upon the privilege of succession, the state has power 
 to tax a legacy to the United States government with the 
 same force that it taxes a legacy to a natural person, and 
 that it is not a taxation of the property of the federal gov- 
 ernment. Bartlett, J., said: "This tax, in effect, limits the 
 power of testamentary disposition, and legatees and dev- 
 isees take their bequests and devises subject to this tax 
 imposed upon the succession to property. This view elim- 
 inates from the case the point urged by the appellant, that 
 to collect this tax would be in violation of the well-estab- 
 lished rule that the state cannot tax the property of the 
 United States. Assuming this legacy vested in the United 
 States at the moment of testator's death, yet, in contempla- 
 tion of law, the tax was fixed on the succession at the same 
 instant of time. This is not a tax imposed by the state 
 on the property of the United States. The property that 
 vests in the United States under this will is the net amount 
 of its legacy after the succession tax is paid." 133 "In the 
 view we take of this case, the legacy to the United States 
 is subject to this tax, whether we consider the assessment 
 
 v. Massachusetts, Id. 632; People v. Home Ins. Co., 92 N. Y. 328, 
 affirmed 119 U. S. 129, 8 Sup. Ct. 1385; In re Swift, 137 N. Y. 
 77, 32 N. E. 1096. See, also, People v. Home Ins. Co., 92 N. Y. 345, 
 affirmed 134 U. S. 594, 10 Sup. Ct. 593; People v. Wemple (N. Y. 
 App.) 33 N. E. 720. These cases hold that the fact that a corporation 
 paying a franchise tax has invested some of its deposits in federal 
 securities, exempted from taxation, does not exempt the society 
 from the franchise tax as to the amount so invested. 
 
 133 in re Merriam's Estate (1894) 141 N. Y. 484, 36 N. E. 505; Id. 
 <Sup.) 26 N. Y. Supp. 191; In re Cullum's Estate (1893) 5 Misc. Rep. 
 173, 25 N. Y. Supp. 700; Id., 76 Hun, 610, 27 N. Y. Supp. 1105, af- 
 firmed in court of appeals, 145 N. Y. 593, 40 N. E. 163, mem. 
 (62)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 28 
 
 as made under the language of the law of 1892, or of the 
 various statutes it amends and repeals. Whether the trans- 
 fer is 'to persons or corporations/ in the language of the 
 law of 1892, or 'to any person or persons, or to a body poli- 
 tic or corporate,' in the words of the earlier statutes, we are 
 of the opinion the language includes the government of the 
 United States. For the purpose of receiving legacies, and 
 for many other purposes, the United States is to be regard 
 ed as a body politic and corporate." 134 So, under these de- 
 cisions, it has been recently held that a legacy to the mayor, 
 aldermen, and commonalty of the city of New York, for the 
 purpose of erecting an ornamental fountain, is liable to tax- 
 ation under the express language of the act of 1891,* Sur- 
 rogate Fitzgerald holding as follows:! "It is not questioned 
 that the legatee is a 'body politic or corporate.' It is, there- 
 fore, taxable by the express verbiage of the law, unless it 
 can be shown to be one of the 'societies, corporations, or 
 institutions now exempted by law from taxation.' There 
 is no provision of the constitution prohibiting the legisla- 
 ture from imposing a tax upon this municipality, and, so 
 far as I have been able to learn, there is no statute which 
 exempts it from general taxation. The privilege conferred t 
 must be obviously limited to corporations organized under 
 the act of which it is an amendment, and cannot, by the 
 most liberal construction, be deemed to have been intended 
 to extend the exemption to municipal corporations. I had 
 occasion, in Re Cullum's Estate,** to refer to the advantage, 
 in construing the various acts taxing inheritances, of regard- 
 ing them as limitations upon the power of testamentary dis- 
 
 134 in re Merriam's Estate (1S94) 141 N. Y. 479, 36 N. E. 505, cit- 
 ing U. S. v. Maurice, 2 Brock. 96, 109, Fed. Cas. No. 15,747. 
 * Laws 1891, c. 215. 
 
 •j- In re Hamilton's Estate, 13 N. Y. Law J. 13S4. 
 t Laws 1891, c. 215; Appendix, I. 
 ** 5 Misc. Rep. 173, 25 N. Y. Supp. 700. 
 
 (63)
 
 § 29 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Cll. 2 
 
 position; and my views then expressed have since received 
 the approval of the court of appeals.ft * * * I fully 
 concur in the views expressed in the able brief of the counsel 
 to the corporation as to the impropriety of taxing bequests 
 of this character, but relief must be sought from the law- 
 making power." 
 
 § 29. Legatee's or Owner's Domicile as to Personal 
 Property and Its Situs. 
 
 Under this, one of the most important branches of the 
 collateral tax law, questions that are beset with difficulty 
 constantly arise. As the majority of these questions do 
 not, however, strictly involve constitutional or jurisdictional 
 points, their discussion and treatment, with one or two ex- 
 ceptions, has been deemed more appropriate under the gen- 
 eral topic of "Domicile and Situs," discussed in another 
 chapter; 135 and it remains here merely to consider the prop- 
 ositions of law which have been determined with respect to 
 such questions of domicile and situs arising under the vari- 
 ous constitutional provisions, federal and state. 
 
 These adjudications seem to have resolved themselves 
 into several propositions: 
 
 (1) Under the maxim "Mobilia sequuntur personam," 13<J 
 it seems to be generally conceded that the state of the de- 
 cedent's domicile has the power of imposing a succession, 
 legacy, or inheritance tax upon the personal property of 
 such decedent, whether situate there, or in a foreign coun- 
 try (and perhaps upon the real estate in a foreign state), 
 and whether bequeathed to resident or alien legatees. 137 
 
 ft Citing In re Merriam's Estate, supra. 
 
 135 See chapter 4, § 47. 
 
 !3 6 Upon this maxim, see 5 Political Science Quarterly (Dec, 1S00) 
 646; note to Commonwealth's Appeal (Small's Estate) 32 Am. Law 
 Reg. 365, 151 Pa. St. 1, and 25 Atl. 23. 
 
 is? chapter 4, § 47; Tyson v. State, 28 Md. 577; Mager v. Grima, 8 
 (64)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 20 
 
 And a state can rightfully tax as the property of a resi- 
 dent the registered public debt of another state, although 
 the debtor state may have exempted it from taxation, or 
 actually taxed it. 138 
 
 There can be no doubt that the legislature has the power 
 to impose the tax, not only where it affects citizens of the 
 state, but also where nonresidents or aliens claim by inher- 
 itance or by will property located there. Every state in the 
 Union, in the absence of a constitutional prohibition, has 
 the authority to regulate by law the devolution and distri- 
 bution of an intestate's property situated within the juris- 
 diction of that state, and personal property situated else- 
 where, but owned by a resident, and to prescribe who shall 
 take, and who shall not be capable of taking it. 139 
 
 (2) It has been held, under the law of Maryland, that tan- 
 gible personal property, i. e. bonds and securities, that are 
 situate in the taxing state, are liable to the succession 
 and legacy tax, although the decedent was not domiciled 
 there, but died in another state, of which he was a citizen 
 and where his will was probated, and in which his collateral 
 legatees resided, and left neither debts nor collateral lega- 
 tees in such taxing state. 140 
 
 The same power exists in parliament, but the intention 
 
 How. 490; Eyre v. Jacob, 14 Grat. 422; State v. Dalrymple, 70 Md. 
 294, 17 Atl. 82; In re Short's Estate, 16 Pa. St. 63; Com. v. Smith, 
 5 Pa. St. 143; In re Alexander's Estate, 3 Pa. Law J. 87; U. S. v. 
 Hunnewell, 13 Fed. 617; In re Ewing's Estate, 1 Cromp. & J. 151- 
 15S; Bittinger's Estate (Appeal of Commonwealth) 129 Pa. St. 338, 
 18 Atl. 132; In re Swift, 137 N. Y. 77, 32 N. E. 1096. 
 
 138 Bonaparte v. Tax Court, 104 U. S, 595. 
 
 139 State v. Dalrymple, and cases, supra. See, also, Common- 
 wealth's Appeal (Small's Estate) 151 Pa. St. 1, 25 Atl. 23, and note 
 to same case, 32 Am. Law Reg. 365. 
 
 140 State v. Dalrymple, supra. Such would also now seem to be 
 the law of New York as to both foreign testates and intestates, 
 where there is property within the state. In re Will of Enston, 113 
 
 LAW inher. — 5 (65)
 
 § 29 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 to tax the personal property of such nonresidents must be 
 clearly expressed. 141 
 
 Under this doctrine they are exempted under the legacy 
 act, and, to some extent, taxed under the succession act. 
 
 Where a nonresident is owner of tangible property with- 
 in the state, and the state imposes a tax upon it, the tax 
 is not a charge against the owner personally, but must be 
 enforced against the property itself. The state has no ju- 
 
 N. Y. 183, 21 N. E. 87; In re Vinot's Estate (Surr.) 7 N. Y. Supp. 
 517; In re Clark's Estate (Surr.) 9 N. Y. Supp. 444; In re Rornaiue, 
 127 N. Y. 80, 27 N. E. 759. This case has attracted general atten- 
 tion. See 58 Hun, 109, 11 N. Y. Supp. 313; 43 Alb. Law J. 513; 48 
 Leg. Int. (Phila.) 265. With regard to the liability of nonresident de- 
 cedents to pay tax upon personal property, i. e., stocks and bonds of 
 foreign corporations, in New York, the ruling in Re Rornaine, supra, 
 has been modified and distinguished, under the act of 1887 (chapter 
 713), by a recent decision in the court of appeals in Re James, 144 
 N. Y. 6, 38 N. E. 961, holding that such stocks were not property in 
 a legal sense within the state, and that the legal situs of that spe- 
 cies of personal property is where the corporation exists, or where 
 the shareholder has his domicile. Gray, J., said, "The reading of the 
 act does not authorize us to< construe it as an effort to tax that over 
 which there was no jurisdiction, and it would be highly improper to 
 impute to the legislature such an intention." The question as to 
 whether such property is taxable under the act of 1892, c. 399, has 
 not been determined. The language of this act is more compre- 
 hensive in its scope, and would seem to overcome the objection taken 
 in Re James, supra. See Laws 1892, c. 399, § 22. The court adopt- 
 ed the rule of general tax laws prevailing in New York on this sub- 
 ject, but as we have shown elsewhere (chapter 4, § 47, subd. b) this 
 rule of domicile is a mere fiction of law,— has no application to a 
 tax like the inheritance tax. See In re James, supra; In re Phipps, 
 143 N. Y. 641, 37 N. E. 823, affirming 77 Hun, 325, 2S N. Y. Supp. 
 330. Yet, in Re Swift, 137 N. Y. 77, 32 N. E. 1090, the same court 
 held that the question of taxation is one of fact, and cannot turn on 
 theories or fictions. 
 
 141 Per Cranworth, Lord Chancellor; Wallace v. Attorney General, 
 1 Ch. App. 1. See chapter 4, § 47, subd. a. 
 (66)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 29 
 
 risdiction to assess such a tax against the owner person- 
 ally. 142 
 
 (3) That as to real estate situate beyond the jurisdiction 
 of the state, where the owner was domiciled at the time of 
 his death, it is beyond the constitutional power of such state 
 to tax the same by any direct tax. 143 
 
 Accordingly, it has been held that the statute of Pennsyl- 
 vania, passed in 1887, 144 which attempted to impose a tax, 
 and to make it a lien upon real estate situate in the state 
 of Maryland, was, so far as the real estate was concerned, 
 a direct tax thereon, and beyond the jurisdiction of the 
 state, and the statute was held, pro tanto, unconstitution- 
 al. 145 The court conceded, however, that the state might 
 impose a succession tax upon such foreign real estate, where 
 it belonged to a citizen, but not a direct tax. 
 
 (4) But in Pennsylvania, where real estate belonging to 
 the citizen of the taxing state, and situate in a foreign coun- 
 try or state, and thus beyond the jurisdiction of the owner's 
 domicile, be directed by will to be converted into personalty, 
 the tax may be imposed, as there is then an equitable con- 
 version, and the tax is in reality only imposed upon the pro- 
 ceeds of the real estate. 146 
 
 142 Cooley, Tax'n (2d Ed.) 21, citing People v. Supervisors of Che- 
 nango Co., 11 N. Y. 563. See Hilton v. Fonda, 86 N. Y. 339. 
 
 143 Appeal of Commonwealth (Bittinger's Estate) supra, distin- 
 guishing Com. v. Smith, 5 Pa. St. 142. See, also, Kintzing v. Hutch- 
 inson, 34 Leg. Int. 365, Fed. Cas. No. 7,834, and cases cited supra 
 (section 15). 
 
 144 Laws Pa. 18S7, p. 79, Appendix, III. 
 
 145 Appeal of Commonwealth (Bittinger's Estate) supra. 
 
 146 Miller v. Com. (1886) 111 Pa. St. 321, 2 Atl. 492; In re Wil- 
 liamson's Estate (1893) 153 Pa. St. 508, 26 Atl. 246, Mitchell, J., dis- 
 senting; In re Hale's Estate, 161 Pa. St. 181, 28 Atl. 1071; In re 
 Howard, 5 Dem. Sur. 483, and cases cited chapter 4, where the sub- 
 ject of equitable conversion is considered. See, also, supra, section 15. 
 Contra, In re Swift, 137 N. Y. 77, 32 N. E. 1096. 
 
 (G7)
 
 § 30 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 § 30. Exemptions — When Constitutional. 
 
 In the absence of constitutional prohibitions, reasonable 
 and fair exemptions under these statutes may be and are 
 made, both as to persons in the direct or collateral line, and 
 as to the value of the property passing, sought to be taxed. 
 
 The provision of the federal constitution, 147 that no state 
 shall deny to any person within its jurisdiction the equal 
 protection of its laws, 148 was not intended to prevent a 
 state from adjusting its system of taxation in all proper and 
 reasonable ways. 
 
 It may, if it choose, exempt certain classes of property 
 from any taxation at all, such as churches, libraries, and the 
 property of charitable institutions. It may impose differ- 
 ent specific taxes upon different trades and professions, and 
 may vary the rates of excise upon different products. It 
 may tax real and personal estate in a different manner. It 
 may tax visible property only, and not tax securities for 
 payment of money. It may allow deductions for indebted- 
 ness, or not allow them. 149 
 
 So it has been held in New York that the legislature is 
 not controlled as to the extent of taxation of property with- 
 in the state, and, in imposing a special tax upon all persons 
 within a certain class, there is no violation of fundamental 
 
 147 14th amendment. 
 
 148 Yet. in State v. Ferris (April, 1S95) 9 Ohio Cir. Ct. R. 298. 
 300, affirmed as State ex rel. v. Ferris, 23 Wkly. Law Bui. (Ohio) 
 July 1, 1895, 349, 352 (opinion will be published in N. E. Rep. as 
 soon as handed down), the circuit court of Ohio declared the 
 direct inheritance tax of that state invalid, as violating the clause 
 of the 14th amendment to the United States constitution, providing 
 that no state "shall deny to any person within its jurisdiction the 
 equal protection of the law." The cases in the United States su- 
 preme court referred to in the text show that this provision has 
 no relation to these laws. Supra, section 12. 
 
 149 Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 237, 10 Sup. Ct. 
 533; In re Sherwell's Estate, 125 N. Y. 379, 26 N. E. 404. 
 
 (68)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 30 
 
 principles. Where the tax is made to apply to every estate 
 which is devised or bequeathed to, or inherited by, the per- 
 sons specified in the law, it is equal, and therefore free from 
 objections on legal grounds. 150 
 
 So an excise upon the transmitting of property by will 
 or descent is not unequal, and so unreasonable, by reason 
 either of an exemption of kindred in the direct line, or of a 
 higher rate as to collaterals and strangers. It is not so 
 clearly unreasonable, by reason of an exemption of estates 
 under $10,000, as to render it unconstitutional. 151 
 
 And in a recent case in Maine, under the inheritance tax 
 law of that state, 152 the court held that: "It is entirely with- 
 in the province of the legislature to determine who shall and 
 who shall not take the estate, and the proportion in which 
 they may take, and whether severally or as joint tenants, per 
 capita or per stirpes. In the absence of constitutional pro- 
 hibition, the legislature is supreme, and may dispose of an 
 intestate's estate, after payment of his debts, to any class 
 or classes of his kindred, to the exclusion of any class or 
 classes. It may limit heirship to lineal descendants, to the 
 absolute exclusion of all collaterals. If it permits, as our 
 laws now do, collateral kindred to inherit, no reason is per- 
 ceived why the state is debarred from exacting an excise or 
 duty from such collateral for such privilege allowed by the 
 state. It is necessary to make such excise uniform as to 
 the entire class of collaterals. It must not tax one and 
 exempt another in the same class. But it is not a violation 
 of this principle to require an excise from all collaterals and 
 strangers, and exempt from the excise classes nearer in 
 blood to the decedent." Statutes have been passed, how- 
 ever, creating exemptions, which have been declared void, 
 as violating constitutional provisions. 
 
 i5o in re Sherwell's Estate, 125 N. Y. 379, 26 N. E. 464. 
 lei Minot v. Winthrop (1894) 162 Mass. 113. 3S N. E. 512. 
 152 state v. Hamlin (1894) 86 Me. 502, 30 Atl. 76. 
 
 (69)
 
 § 30 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 In Curry v. Spencer, 153 an inheritance tax law was held 
 unconstitutional, as violating the provision limiting the 
 power to tax "proportional and reasonable assessments, 
 rates and taxes upon all the inhabitants and residents with- 
 in the said state, and upon the estates within the same," 
 and as violating the bill of rights, requiring every inhabit- 
 ant to contribute not more of his proportional share of the 
 common burden. The court said : "We therefore go no fur- 
 ther than to say that, if the legislature deems it expedient 
 to defray the expenses of probate courts by a tax upon re- 
 cipients of estates therein adjudicated, such tax must be 
 proportional, and constitute only the just share of those 
 upon whom it is imposed ; that it cannot lawfully make dis- 
 criminations, and cast the burden upon one class of bene- 
 ficiaries, and exempt all other classes from its operation; 
 and that it cannot, therefore, for purposes of taxation, ex- 
 empt legacies and successions to husband, wife, children, 
 and grandchildren, and include only those by the collaterals 
 and others than those specified." In Ohio the direct inher- 
 itance tax act 154 has recently been declared unconstitution- 
 al, as violating the rule of uniformity and equality, in that 
 the exemptions under the act were restricted to certain 
 classes and amounts, and did not apply to all persons. 155 
 
 And in Minnesota, 156 a statute requiring, as a condition 
 precedent to probate proceedings for the settlement of es- 
 tates, the payment to the county treasurer of specified sums, 
 arbitrarily prescribed with reference to the value of the es- 
 state, was held unconstitutional, being contrary to clauses 
 requiring equality of taxation, and the dispensation of jus- 
 
 153 1882, 61 N. H. 624. 
 
 is* Appendix, Act 1894 (91 Ohio Laws, 166). 
 155 state v. Ferris (April, 1895) supra, p. 68. 
 
 ise state v. Gorman (1889) 40 Minn. 232, 41 N. W. 948. The con- 
 stitution of this state now allows such a tax. See section 11, supra. 
 (70)
 
 Ch. 2] NATURE OF TAX AND ITS CONSTITUTIONALITY. § 31 
 
 tice freely and without purchase. The court said: 1BT "It is 
 thus apparent that these exactions are taxes, in the general 
 and in the precise meaning of that word, and, if the constitu- 
 tional rule of approximate equality has been disregarded, the 
 law cannot stand. It seems hardly necessary to refer particu- 
 larly to the schedule of values and of amounts required to 
 be paid, to show that the law wholly fails, in apportioning 
 the burden imposed, to regard the constitutional rule of 
 equality, measured with reference to the value of the prop- 
 erty taxed. In the first place, estates not exceeding f 2,000 
 in value are wholly exempt from any contribution. If es- 
 tates are taxable in this manner at all, such an exemption 
 is contrary to the requirements of the constitution." 
 
 This ruling is now probably overcome by the recent 
 amendment to the constitution of that state, providing for 
 an inheritance tax. 158 
 
 Under the constitution of Pennsylvania to exempt an in- 
 stitution from taxation it is an essential feature that it be 
 a public charity, free from any element of private or corpo- 
 rate gain. When it is free from the latter element, and is 
 an institution devoted to charity by its act of incorporation, 
 its character as such charity is not destroyed, if to some ex- 
 tent it receive a revenue from the recipients of its bounty. 159 
 
 § 31. General Questions as to Jurisdiction. 
 
 Surrogates' courts are constitutionally empowered to de- 
 termine the tax, as it is simply an incident in the settlement 
 of the estate of deceased persons. 160 And the power to im- 
 
 157 40 Minn. 235, 41 N. W. 949. 
 
 158 Supra, section 11. 
 
 159 Philadelphia v. Woman's Christian Ass'n (1S89) 125 Pa. St. 
 572, 17 Atl. 475; Philadelphia v. Pennsylvania Hospital, 47 Leg. Int. 
 70. 
 
 i6o in re McPherson (1887) 104 N. Y. 306, 10 N. E. 685; Wallace 
 y. Myers, 38 Fed. 184. 
 
 (71)
 
 § 31 NATURE OF TAX AND ITS CONSTITUTIONALITY. [Ch. 2 
 
 pose a succession tax may be delegated by the legislature 
 to counties and municipal corporations, though it should be 
 plainly and unmistakably conferred, and the law will be 
 strictly construed. 181 
 
 isi Peters v. City of Lynchburg, 76 Va. 927; Schoolfield v. City of 
 Lynchburg, 78 Ya. 366. Constitutional rule considered with ref- 
 erence to valuation of life estates. See William's Case, 3 Bland, 1S6. 
 (72)
 
 Ch. 3] EXEMPTIONS. § 32 
 
 CHAPTER III. 
 
 EXEMPTIONS.! 
 
 f 32. Taxation the General Rule. 
 
 33. Policy of Inheritance, Legacy, and Succession Tax Laws. 
 
 34. An Enumeration of Statutory Exemptions. 
 
 (a) New York. 
 
 (1) Under General Tax Laws. 
 
 (2) Collateral Heirs under Acts 1S87 and 1892. 
 
 (3) Direct or Lineal Heirs— Act 1892. 
 
 (4) Religious and Other Corporations— Act 1890. 
 
 (b) Pennsylvania. 
 ( ) Maryland. 
 
 (d) Virginia. 
 
 (e) West Virginia. 
 
 (f) Delaware. 
 
 (g) Connecticut, 
 (h) North Carolina. 
 (i) California. 
 
 (j) Maine, 
 (k) Massachusetts. 
 (1) New Jersey, 
 (m) Ohio. 
 
 (1) Collateral Heirs— Act 1893. 
 
 (2) Direct or Lineal Heirs— Act 1894. 
 (n) Tennessee. 
 
 (o) Illinois. 
 
 (p) Minnesota. 
 85. Charitable, Religious, and Other Corporations and Objects. 
 36. Foreign Corporations and Governments. 
 87. Adopted Children— Mutually Acknowledged Relation of Par- 
 ent and Illegitimate Children, etc. 
 
 38. Widows, and Husbands of Deceased Daughters. 
 
 39. Next of Kin, Lineal and Lawful Descendants. 
 
 1 See, also, chapter 2, § 30, on constitutionality of exemptions; 
 chapter 4, as to resident and nonresident decedents; chapter 6, as to 
 constructive exemptions, remainders, trusts, powers, and legacies. 
 
 (73)
 
 32 EXEMPTIONS. [Ch. 3 
 
 40. Aliens, Foreign Legatees, and Nonresidents. 
 
 41. What Estates or Interests Taxable— Amounts Limited. 
 
 42. Foreign Real Estate. 
 
 43. Legacies when Exempt under Acts of Congress. 
 
 § 32. Taxation the General Rule. 
 
 As taxation is held to be the general rule extending to 
 all species of property, so exemption is the exception to 
 such rule, with the further important qualification that 
 statutes purporting to grant exemption from general taxa- 
 tion are to be strictly construed against the claim. 2 Such 
 exemptions are neither presumed nor allowed, unless there 
 appears from the language of the statute or charter to be 
 a clear intention on the part of the legislature to make an 
 exception to the general rule; 3 and, where the law is doubt- 
 ful, the court should declare against the exemption. 4 
 
 Where, however, a particular subject is within the scope 
 of the taxing power, and exemption from taxation is claim- 
 ed on the ground that the legislature has not provided 
 proper machinery for accomplishing the legislative purpose 
 in the particular instance, a liberal, rather than a strict, 
 construction should be applied; and if, by a fair and reason- 
 able construction of its provisions, the purpose of the stat- 
 
 2 Cooley, Tax'n (2d Ed.) 205; Tucker v. Ferguson, 22 Wall. 527; 
 People v. Long Island City, 76 N. Y. 20; Association for Benefit of 
 Colored Orphans v. Mayor, etc., of New York, 104 N. Y. 587, 12 N. 
 E. 279. 
 
 s Cooley, Tax'n (2d Ed.) 204, and cases cited; People v. Roper, 35 
 N. Y. 629; People v. Davenport, 91 N. Y. 574; Wilson v. Gaines, 
 103 U. S. 421. 
 
 4 Roosevelt Hospital v. Mayor, etc., of New York, 84 N. Y. 108; 
 People v. Collison (Sup.) 6 N. Y. Supp. 711; Louisville & N. R. Co. 
 v. Gaines, 2 Flip. 621, 3 Fed. 266. And see Fox v. Com., 16 Grat. 1: 
 In re Forrester (1890; Sup.) 12 N. Y. Supp. 774; In re Stiger (1S94; 
 Suit.) 28 N. Y. Supp. 103; In re Fay er weather (1S94) 143 N. Y. 119, 
 38 N. E. 278. 
 (74)
 
 Ch. 3] EXEMPTIONS. § 53 
 
 ute can be carried out, that interpretation ought to be 
 given to effectuate the legislative intent 5 
 
 Special tax laws, however, are to be construed most strict- 
 ly against the government, and most favorably to the tax- 
 payer; 6 and a citizen cannot be subjected to such special 
 burdens without clear warrant of law. 7 
 
 § 33. Policy of Inheritance, Legacy, and Succession 
 
 Tax Laws. 
 
 As has already been observed in the first chapter, it has 
 been the policy of these laws from the earliest times to 
 make exemptions. Those that were allowed, however, were 
 strictly confined, for the most part, to gifts to the near rel- 
 atives of the decedent, and to the poor. Charitable insti- 
 tutions do not seem, originally, to have been so generally 
 favored. This rule has been, however, widely departed 
 from by most of the American states which have enacted 
 inheritance and succession laws. So, under the English 
 legacy duty act, saving husband and wife, and, subsequent- 
 ly, certain well-defined charitable and religious corpora- 
 tions and institutions, 8 the law makes no exceptions, even 
 to the nearest blood relations. As to the latter, however, 
 in pursuance of the principle of graduation, the tax is 
 
 s In re Enston's Will, 113 N. Y. 174, 21 N. E. 87; In re Stewart 
 (1S92) 131 N. Y. 274, 2S2, 30 N. E. 184. 
 
 eDwar. St. 742-749; Gurr v. Scudds, 11 Exch. 190; U. S. v. Wig- 
 glesworth, 2 Story, 369; U. S. v. Watts, 1 Bond, 580; Fox v. Com., 
 supra; In re Fayerweatner, supra; Partington v. Atty. Gen., L. R. 
 4 H. L. 100, 122. 
 
 7 In re Enston's Will, 113 N. Y. 178, 21 N. E. 87, and cases cited; 
 In re Vassar (1891) 127 N. Y. 12, 27 N. E. 394; Cullen's Estate (1S91) 
 142 Pa. St. 18, 21 Atl. 781; Hale's Estate (1894) 161 Pa. St. 182, 28 
 Atl. 1071. 
 
 8 56 Geo. m. c. 56; 5 & 6 Vict. c. 82. 
 
 (75)
 
 § 33 EXEMPTIONS. [Ch. 3 
 
 made proportionately smaller than that which is imposed 
 upon strangers and collaterals. So the laws imposing a 
 succession tax, passed by congress during the Rebellion, 
 following the English statute, imposed the duty uniformly 
 upon all who took by inheritance or intestacy. The legacy 
 act, however, excepted husband and wife. 9 
 
 But under the state laws exemptions have been generally 
 extended so as to embrace, not only near relatives and 
 lineal descendants, but many collateral heirs and charitable 
 and religious corporations. And the policy seems also to 
 be to relieve all estates or shares if under a certain fixed 
 sum, the maximum amount exempted being from $500 to 
 $10,000 in New York. 
 
 In New York and Connecticut exemptions under the col- 
 lateral inheritance laws have been carried to an extreme 
 limit, 10 and, it seems, beyond the true idea and scope of a 
 collateral tax law. The statutes of these states except not 
 only all lineal descendants born in lawful wedlock, 11 — which 
 is the true limit of a collateral tax law, — but also certain 
 collaterals and adopted children, 12 and in New York va- 
 rious societies, institutions, and corporations that are ex- 
 empt by law from taxation, 13 and by the act of 1892 other 
 exemptions are specified; 14 while in Connecticut bequests 
 for charitable purposes and for purposes strictly public, 
 
 » Rev. St. U. S. (2d Ed. 1878) §§ 3438, 3439. 
 
 io This is especially so in the former state, as regards charitable, 
 religious, tract, literary, and other corporations, for sweeping ex- 
 emption has recently been granted them by Laws 1890, c. 553. See, 
 also, Laws 1892, c. 399, §§ 1, 2. See Appendix, I. b. 
 
 1 1 The New York statute of 1892 now taxes both classes. 
 
 12 The only pure succession tax laws are those in force in Eng- 
 land, and the nearest approach in this country are the laws of con- 
 gress, now repealed, and those of Delaware, Maryland, Ohio, New 
 York, and Illinois. 
 
 is See Laws 1S90, supra. 
 
 " See Appendix, I., Laws 1892, c. 399, §§ 1, 2. 
 (76)
 
 Ch. 3] EXEMPTIONS. § 34 
 
 within the state, 16 and the lineal descendants of adopted 
 children, are also exempted. These several exemptions are, 
 however, expressly made by the acts themselves. 18 
 
 Without discussing the question whether it would not be 
 wiser to adopt a system that would impose the burden 
 equally upon all inheritance and successions over a certain 
 sum, 17 exempting only purely charitable institutions that 
 rely upon gratuitous donations, the object of the present 
 chapter will be best subserved by a brief presentation and 
 review — First, of the several statutory exemptions thus far 
 enacted in this country, and, second, of the decisions ren- 
 dered under such statutes; and this brings us to 
 
 § 34. An Enumeration of Statutory Exemptions. 
 
 (a) New York. 
 
 (1) Under General Tax Laws. 
 
 The general laws of New York on taxation, and provid- 
 ing for exemptions therefrom, are contained in the New 
 York Kevised Statutes. 18 
 
 The provisions deemed applicable to the exemptions un- 
 der the collateral or transfer tax laws are as follows: 
 
 "Sec. 1. All lands and all personal estate within this 
 
 its Appendix, VII., Laws 1889, §§ 1-17. 
 
 16 Laws N. Y. 1SS5, c. 4S3, amended by Laws 1887, c. 713, § 1; 
 Laws 1SS9, c. 479; Laws 1889, c. 307; Laws 1890, c. 553; Laws 
 1S92, c. 399, §§ 1, 2; Laws Conn. 18S9, p. 100, §§ 1-17. See Appen- 
 dix, I., VII. 
 
 « in New York, under Act 1892, c. 399, and Ohio, by statute 
 passed in 1893 and 1894, both collateral and lineal heirs are now 
 taxed. The statute of Ohio taxing lineal heirs has been declared 
 unconstitutional, as violating the rule of the state constitution re- 
 quiring equality and uniformity. State v. Ferris, 9 Ohio Cir. Ct. R. 
 299; affirmed 23 Wkly. Law Bui. (Ohio) July 1, 1895, 349, 352. 
 Opinion will be published in N. E. Rep. as soon as -handed down. 
 
 is Banks' 8th Ed. vol. 2, p. 10S2, pt. 1, c. 13, tit. 1. 
 
 (77)
 
 § 34 EXEMPTIONS. [Ch. 3 
 
 state, whether owned by individuals or by corporations, 
 shall be liable to taxation, subject to the exemptions here- 
 inafter specified. * * * 
 
 "Sec. 4. The following property shall be exempt from 
 taxation : 
 
 "(1) All property, real or personal, exempted from tax- 
 ation by the constitution of this state or under the consti- 
 tution of the United States. 
 
 "(2) All lands belonging to this state or to the United 
 States. 
 
 "(3) Every building erected for the use of a college, incor- 
 porated academy, or other seminary of learning, and in ac- 
 tual use for either of such purposes; every building for pub- 
 lic worship; every school-house, court-house and jail, used 
 for either of such purposes; and the several lots whereon 
 such buildings are situated, and the furniture belonging to 
 each of them. 19 
 
 "(4) Every poor-house, alms-house, house of industry, 20 
 and every house belonging to a company incorporated for 
 the reformation of offenders, or to improve the moral con- 
 dition of seamen, 21 and the real and personal property used 
 for such purposes belonging to or connected with the same. 
 
 is See In re Vassar, 127 N. Y. 1, 27 N. E. 397. The New York 
 consolidation act (Laws 1S82, c. 410, § 827) makes these provisions 
 inapplicable to any such building for public worship, and any such 
 schoolhouse or other seminary of learning, in the city of New York, 
 "unless the same shall be exclusively used for such purposes, and 
 exclusively the property of a religious society." Young Men's 
 Christian Ass'n v. Mayor, etc., of New York, 113 N. Y. 189, 21 N. 
 E. 86. As to schoolhouses, see Church of St. Monica v. Mayor, su- 
 pra. See, also, Congregation Kal Israel Auschi Poland v. City of New 
 York (Sup.) 1 N. Y. Supp. 35. For institutions in New York City 
 exempted from taxation, see Laws 18S2, c. 410, §§ 824, 827. 
 
 20 Estate of Noyes, N. Y. Law J. July 5, 1890. 
 
 2i In re Yanderbilt's Estate (Surr.) 10 N. Y. Supp. 239. 
 (78)
 
 Ch. oj EXEMPTIONS. § 34 
 
 "(5) The real and personal property of every public li- 
 brary. 22 
 
 "(G) All stocks owned by the state, or by literary or char- 
 itable institutions. 
 
 "(7) The personal estate of every incorporated company 
 not made liable to taxation on its capital, in the fourth 
 title of this chapter." 23 
 
 (2) Collateral Heirs Under Neio York Ads of 1887 and 1892. 
 Under the statutes in force in this state prior to the 
 act of 1892, 24 the tax imposed was purely in the nature of 
 a collateral inheritance tax, the exemptions under which 
 are given in the note. 25 
 
 22 in re Lenox's Estate (Surr.) 9 N. Y. Supp. 895. 
 
 23 The following is the provision referred to in the last subdivi- 
 sion: Section 1. "All monied or stock corporations, deriving an in- 
 come or profit from the capital or otherwise, shall be liable to taxa- 
 tion on their capital in the manner hereinafter prescribed." 2 Rev. 
 St. (Banks' 8th Ed.) p. 1149. See, construing this section, Catlin v. 
 Trustees of Trinity College, 113 N. Y. 133, 20 N. E. 864; In re Van- 
 derbilt's Estate, supra, and cases post, p. 98, note 99. For a list of 
 exemptions by special statutes, see Davis' System of Taxation (N. 
 Y.) p. 288; also, Laws 1890, c. 553, Appendix, I. b. 
 
 24 See Appendix, I., Laws 1892, c. 399. By secjtion 23 of this act 
 the following statutes were expressly repealed: Laws 1SS5, c. 483; 
 Laws 1SS7, c. 713; Laws 1889, c. 307; Laws 18S9, c. 479; Laws 
 1891, g. 215. These statutes, excepting that of 1885, have been re- 
 tained in the Appendix, in order that the prior law may be readily 
 consulted. The following statutes seem to be yet in force, and are 
 also given in the Appendix: Laws 1S90, c. 553; Laws 1892, c. 168. 
 See, also, Laws 1S93, c. 199, § 2, repealing Laws 1892, c. 443; Laws 
 1893, p. 1725, c. 692, § 48c; Laws 1894, p. 1929, c. 767, amending 
 Laws 1892, c. 399, § 14. For a collection of decisions under these 
 acts, see 3 Bliss' N. Y. Code (3d Ed.) p. 2782. 
 
 25 Persons and corporations exempt under Act 1887, etc.: 
 
 (1) Father, mother, husband, wife, child, brother, sister. 
 
 (2) The wife or widow of a son, or the husband of a daughter, or 
 
 (3) Any child or children adopted as such in conformity with the 
 
 (79)
 
 § 34 EXEMPTIONS. [Ch. 3- 
 
 (3) Direct or Lineal Heirs — Act 1892. 
 
 The old statutes being repealed, the act of 1892 2e now 
 taxes property passing to two classes: First, to certain 
 
 laws of the state, or any person to whom the deceased, for not less 
 than 10 years prior to his or her death, stood in the mutually ac- 
 knowledged relation of parent. 
 
 (4) And any lineal descendants of such decedent horn in lawful 
 wedlock, or 
 
 (5) The societies, corporations, and institutions now exempted by 
 law from taxation. Laws 1S87, c. 713, § 1. See Appendix, I. a. 
 Act 1885, c. 483, only applies to property of decedents dying after 
 June 30, 1885, when the act took effect. In re Howe, 112 N. Y. 100, 
 19 N. E. 513; In re Thompson, 14 N. Y. St. Rep. 487, overruling In 
 re Chardavoyne, 5 Dem. Sur. 460. 
 
 (6) Legacies worth less than $500. See In re Sherwell's Estate, 
 125 N. Y. 379, 26 N. E. 464; In re Underbill's Estate (Surr.) 20 N. 
 Y. Supp. 134. 
 
 (7) Bequests to executors in lieu of commissions. And by Laws 
 1SS9, c. 479, the persons embraced in class 3 are relieved retrospec- 
 tively from the tax theretofore imposed uuder Act 1S85, c. 483. 
 
 The amendatory act, however, only applies to such persons against 
 whom no assessment of the tax had been made at the time it be- 
 came a law, — June 14, 1889. In re Hughes, N. Y. Law J., July 27, 
 1SS9; In re Kemeys, 56 Hun, 117, 9 N. Y. Supp. 182. As to consti- 
 tutionality of retrospective exemptions, see chapter 2, § 30. 
 
 2 6 The title of the act is "An act in relation to taxable transfers of 
 property." The word "transfer" fails appropriately to express the 
 true nature of this tax, and it became necessary to define it in the 
 act (section 22, c. 399): "The word 'transfer' as used in this act, 
 shall be taken to include the passing of property or any interest 
 therein in possession or enjoyment, present or future, by inherit- 
 ance, descent, devise, bequest, grant, deed, bargain, sale or gift, in 
 the manner herein described." See In re Hoffman's Estate, 143 
 N. Y. 327, 38 N. E. 311. The word "transfer" is not restricted 
 to a conveyance or deed, but also includes transfers by will. Tal- 
 madge v. Seaman, 85 Hun, 242, 32 N. Y. Supp. 906; reversed as In 
 re Seaman (Oct. 8, 1895; Ct. App.) 41 N. E. 401. See, also, In re 
 Brooks' Estate (Surr.) Id. 176; In re Forsyth, 10 Misc. Rep. 477, 32 
 N. Y. Supp. 175. 
 (80)
 
 Ch. 3] EXEMPTIONS. § 34 
 
 collateral heirs, corporations, and strangers, at the rate of 
 5 per cent.; 27 and, second, personal property of the value 
 of |10,000 or more, passing to certain lineals and others at 
 the rate of 1 per cent. 28 
 
 The tax of 5 per cent, is imposed upon the transfer of any 
 property, real or personal, of the value of $500 or over, or 
 of any interest therein, or income therefrom, in trust or 
 otherwise, to persons or corporations not exempt by law 
 from taxation on real or personal property: 29 
 
 (1) When the transfer is by a resident. 
 
 (2) When the transfer is of property within the state, 
 and decedent was a nonresident at death. 
 
 (3) Where the transfer is by a resident or nonresident, 
 when the latter's property is within the state, by deed, 
 grant, bargain, sale, or gift, made in contemplation of the 
 death of the grantor, vendor, or donor, or intended to take 
 effect in possession or enjoyment at or after such death. 
 "Such tax shall also be imposed when any such person or 
 corporation becomes beneficially entitled in possession or 
 expectancy to any property, or the income thereof, by any 
 such transfer, whether made before or after the passage 
 of this act." 30 The tax on property passing to lineals is 
 
 27 Laws 1892, c. 399, § 1, subd. 3. 
 
 28 Laws 1892, c. 399,'§ 2. 
 
 2 9 The tax is upon the estate. The limitation to $500 in this sec- 
 tion relates to the aggregate estate of decedent, and not to the share 
 of the legatee. This is a change in the law as it existed prior to 
 the act of 1892. In re Taylor's Estate (Suit.) 27 N. Y. Supp. 232. 
 Legacies to strangers of $100 are taxable where the property passing 
 to the unexempted class amounts in the aggregate to more than 
 $."300. In re Flynn's Estate (Suit.) 30 N. Y. Supp. 3S8; In re Hoff- 
 man's Estate, 143 N. Y. 333, 38 N. E. 311; In re Hall (Sup.) 34 N. 
 Y. Supp. 616. Contra, In re Sterling's Estate (Suit.) 30 N. Y. Supp. 
 385; In re Skillman's Estate (Suit.; 1894) 32 N. Y. Supp. 780, where 
 the surrogate refused to follow the Hoffman Case. 
 
 so Laws 1892, c. 399, § 1, subd. 3. The last clause of this section 
 LAW INHER. — 6 (81;
 
 § 34 EXEMPTIONS. [Ch. 3 
 
 further restricted by a limitation that such transfer of 
 property shall not be taxable "unless it is personal property 
 of the value of f 10,000 or more." 31 
 
 The following classes of persons under the act of 1892 pay 
 the tax of 1 per cent., and are thus exempt from the other 
 tax: 
 
 (1) Father, mother, husband, wife, child, brother, sister; 
 
 (2) Wife or widow of a son ; or the 
 
 (3) Husband of a daughter; or 
 
 (4) Child or children adopted as such in conformity with 
 the laws of the state; or 
 
 (5) Persons to whom decedent, grantor, donor, or vendor, 
 for not less than 10 years prior to such transfer, stood in 
 the mutually acknowledged relation of a parent; or 
 
 is retroactive, so far as the legal estate is concerned, but not as to 
 the beneficial interest, where it came into existence after the pas- 
 sage of the act. Tallmadge v. Seaman, So Hun, 242, 32 N. Y. Supp. 
 906; see p. 80, note 26; In re Brooks (Surr.) 32 N. Y. Supp. 176; 
 In re Forsyth, 10 Misc. Rep. 477, 32 N. Y. Supp. 175. See the sub- 
 ject considered in chapter 6, § 5S, subd. 3, f. 
 
 si Laws 1SU2, c. 399, § 2. See section 22. Under this provision, in 
 connection with the definition of the words "estate" and "property," 
 in section 22 of the act, it has been held that the words, "unless it is 
 personal property of the value of ?10,0O0, or over," apply to the ag- 
 gregate property of the testator or decedent, and not to the property 
 passing to the legatee or devisee, and that if the aggregate property 
 passing is $10,000, or over, it is taxable, notwithstanding the legatees 
 take less than that amount. The court said: "And so we are pre- 
 pared to say that the interest of the mother [life tenant] is taxable 
 at one per cent., although itself of a value of less than $10,000, be- 
 cause the aggregate transfers by the will to taxable persons ex- 
 ceeded that amount." In re Hoffman's Estate (1894) 143 N. Y. 
 333, 38 N. Y. Supp. 311, and cases cited supra, note 29. Contra, 
 In re Skillman, supra. To this extent the rule adopted under the 
 former statutes is modified, as the court concede. See In re Cager's 
 Will, 111 N. Y. 344, 18 N. E. S66; In re Howe, 112 N. Y. 100, 19 N. 
 E. 513. 
 (82)
 
 Ch. 3] EXEMPTIONS. § 34 
 
 (G) Lineal descendants of decedent, born in lawful wed- 
 lock. 
 
 The exemptions under the act of 1S92 are: 
 (1) Property, real and personal, of less value than foOO. 32 
 (2i) Personalty of less value than |10,000, passing to 
 lineals 33 and others. 
 
 (3) All real estate passing to lineals. 3 * 
 
 (4) Persons or corporations exempt by law from taxation 
 on real or personal property. 35 
 
 (5) Any property heretofore or hereafter devised or be- 
 queathed to any person who is a bishop, 36 
 
 (6) Or to any religious corporations. 37 
 
 (7) Devises, etc., to executors in lieu of commission. Ex- 
 cess taxable. 38 
 
 (4) Religious and Other Corporations — Act 1890. 
 
 By the act of 1890, 39 the following 13 or more corpora- 
 tions are also exempt: "Any religious, educational, Bible, 
 
 32 Laws 1S02, c. 399, § 1. 
 
 3 3 Laws 1S92, c. 399, § 2; that is, where the aggregate value of 
 the estate does not exceed $10,000. In re Hoffman's Estate, supra. 
 
 34 As to when realty is or is not taxable as personalty, under the 
 doctrine of equitable conversion, see chapter 4, § 46, subd. b. 
 
 3 5 Laws 1892, c. 399, § 1. 
 
 3 6 Laws 1892, c. 399, § 2. See, also, Laws 1S92, c. 169; Roman 
 Catholic Church v. Niles, 86 Hun, 221, 33 N. Y. Supp. 243, holding 
 that this section applies to cases where the tax had become due. but 
 was not paid, at the time the law was enacted, and is not solely ap- 
 plicable to those cases where no appraisement could be made. See, 
 also, People v. Commissioner" of Taxes & Assessments, 142 N. Y. 34S. 
 37 N. E. 116. 
 
 3 7 Laws 1892, c. 399, § 2. 
 
 3 8 Laws 1S92, c. 399, § 8. 
 
 39 See Appendix, I. b, c. 553, approved June 7, 1890, entitled 
 "An act to amend chapter 191 of the Laws of 1SS9, entitled 'An 
 act to limit the amount of property to be held by corporations organ- 
 ized for other than business purposes, and relating to such corpora- 
 
 (83)
 
 § 34 EXEMPTIONS. [Ch. 3 
 
 missionary, tract, literary, scientific, benevolent, or chari- 
 table corporation, or corporation organized for the enforce- 
 ment of laws relating to children or animals, or for hospital, 
 infirmary, or other than business purposes: * * * pro- 
 vided, that this provision shall not apply to any monied or 
 stock corporation deriving an income or profit from the 
 [its] capital or otherwise, or to any corporation which has 
 the right to make dividends, or to distribute profits or as- 
 sets among its members." 40 
 
 (b) Pennsylvania. 41 
 
 (1) Father, mother, wife, children, and 
 
 (2) Lineal descendant born in lawful wedlock, or 
 
 (3) Wife or widow of the son of the person dying seised 
 or possessed. 
 
 (4) Estates of less than f 250. 
 
 (5) Bequests to executors (of a fair and reasonable sum) 
 in lieu of commissions. Excess taxable. 42 
 
 tions." It would seem that the institution should be legally incorpo- 
 rated, in order to come within the statute. Church of St. Monica v. 
 Mayor, etc., of New York, 119 N. Y. 91, 23 N. E. 294. This act is not 
 retroactive. Sherrill v. Christ Church, 121 N. Y. 701, 25 N. E. 50, re- 
 versing In re Van Kleeck, 55 Hun, 472, 8 N. Y. Supp. S06. See In re 
 Miuturn (July 18, 1890) 3 N. Y. Law J. 804; In re Vassar, 127 N. Y. 
 10, 27 N. E. 397. 
 
 40 See In re Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 239. Colum- 
 bia College, in the city of New York, is exempt, under this act. In re 
 Da Costa (March 12, 1891) 4 N. Y. Law J. 1470. The United States, 
 as a legatee, is not exempt under this act, as a foreign corporation, as 
 it relates merely to domestic corporations. In re Cullum's Estate, 5 
 Misc. Rep. 173, 25 N. Y. Supp. 699; Id., 76 Hun, 610, 27 N. Y. Supp. 
 1105, and 145 N. Y. 593, 40 N. E. 103; In re Hamilton's Estate 
 (Sept. 9, 1895) 13 N. Y. Law J. 1384; In re Merriam's Estate, 141 N. 
 Y. 479, 36 N. E. 505; In re Prime, 136 N. Y. 347, 32 N. E. 1091. 
 
 4i Laws 1887, p. 79, § 1; Appendix, III. 
 
 * 2 By Const. Pa. 1873, art. 9, "the general assembly may by general 
 laws exempt from taxation public property, held for public purposes; 
 (84)
 
 Ch. 3] EXEMPTIONS. § 34 
 
 (c) Maryland. 43 
 
 (1) The father, mother, husband, wife, children, and 
 
 (2) Lineal descendants of the decedent. 
 
 (3) Estates under $5( 
 
 (d) Virginia.* 4 
 
 (1) Lineal descendants, or 
 
 (2) Father, mother, husband, wife, brother, sister. 
 
 (3) Nephew or niece. 
 
 (e) West Virginia. 45 
 
 (1) Father, mother, wife, children, and 
 
 (2) Lineal descendants of the grantor, devisor, or intes- 
 tate. 
 
 (3) Surviving husband. 
 
 (4) Estates under $1,000. 
 
 (f) Delaware. 46 
 
 (1) Father, mother, wife, children, and 
 
 (2) Lineal descendants of the decedent. 
 
 (3) Estates under 
 
 actual places of religious worship, places of burial not owned or held 
 for private or corporate profit, and institutions of purely public char- 
 ity." See Philadelphia v. Women's Christian Ass'n (18S9) 125 Pa. St. 
 572, 17 Atl. 475; Philadelphia v. Pennsylvania Hospital, 47 Phila. 
 Leg. Int. 70. 
 
 4 3 2 Pub. Gen. Laws Md. 1888, p. 1242, art. 81, § 102. See Appen- 
 dix, VIII. This statute is a model of good drafting, and contains 
 some excellent provisions, especially those relating to contingent re- 
 mainders, etc. 
 
 44 Acts 1866-67, p. 861, c. 64, § 3. 
 
 4 5 Warth's Code (2d Ed.) c. 32; Laws 1887, c. 31; Code 1891, c. 32, 
 §51a. 
 
 4 6 Tax 1 to 5 per cent. Rev. Code 1S74, p. 38'. 
 
 (85)
 
 § 34 EXEMPTIONS. [Ch. 3 
 
 (g) Connecticut. 47 
 
 (1) Father, mother, husband. 
 
 (2) Lineal descendants. 
 
 (3) Adopted child. 
 
 (4) Lineal descendants of any adopted child. 
 
 (5) The wife or widow of a son. 
 
 (6) The husband of the daughter of decedent, or 
 
 (7) Bequests for some charitable purpose, or 
 
 (8) Purposes strictly public within the state. 
 
 (9) Estates under $1,000. 
 
 (10) Brothers and sisters of decedent.* 
 
 The statute defines the words "charitable purpose" to in- 
 clude gifts to an} 7 educational, benevolent, ecclesiastical, 
 or missionary corporation, association, or object. 48 
 
 (h) North Carolina. 49 
 
 (1) Lineal descendant, or 
 
 (2) Ancestor of the husband or wife of the deceased. 
 
 (3) Husband or wife of such ancestor or decedent, or to 
 which such collateral relations may become entitled to un- 
 der the law for the distribution of the intestate's estate, 
 and which real and personal property may not be required 
 in payment of debts and other liabilities. 
 
 1. If such collateral relations be brother or sister of the 
 father or mother of the deceased, or issue of such brother 
 or sister, a tax of 1 per cent, is imposed. 
 
 2. If such collateral relation be a more remote relation, 
 or the devisee or legatee be a stranger, a tax of 2| per cent, 
 is imposed. 50 
 
 4 7 Pub. Laws 1889, p. 106, c. 180. See Appendix, VII. 
 * Laws 1893, c. 257, p. 406, Appendix, VII. 
 4 8 Section 17. 
 
 40 Bat. Revisal 1873, p. 775, § 59. Repealed by Code N. C. 1883, § 
 3867. 
 so The statutes of Louisiana and those of congress have been re- 
 (SO)
 
 Ch. 3] EXEMPTIONS. § 34 
 
 (i) California. 51 
 
 (1) Father, mother, husband, and wife. 
 
 (2) Lawful issue. 
 
 (3) Brother, sister. 
 
 (4) Wife or widow of a son, or 
 
 (5) Husband of a daughter, or 
 
 (6) Adopted child or children. 
 
 (7) Lineal descendants born in lawful wedlock. 
 
 (8) Societies, corporations, and institutions now exempted 
 by law from taxation. 
 
 (9) Estates of less sum than $500. 52 
 
 (10) Bequests to executors or trustees in lieu of commis- 
 sion. Excess taxable. 
 
 (j) Maine. 53 
 
 (1) Father, mother, husband, wife. 
 
 (2) Lineal descendant. 
 
 (3) Adopted child. 
 
 (4) Lineal descendant of adopted child. 
 
 (5) Wife or widow of a son. 
 
 (6) Husband of daughter. 
 
 (7) Estates above $500. 
 
 (8) Bequests to executors in lieu of allowances. 
 
 (9) Educational, charitable, or benevolent institutions in 
 the state.f 
 
 pealed, but an inheritance tax is put in the federal income tax of 
 1S94, which has been declared unconstitutional. See chapter 1, § 5; 
 c. 11, § 12. 
 
 si See Appendix, IX., St. Cal. 1893, c. 168. 
 
 52 St. Cal. 1S93, c. 168, § 1. 
 
 ss See Appendix, V., Laws Maine 1S93, c. 146, § 1; Laws 1895, 
 ec. 96, 124, amending Laws 1893. Held constitutional in State v. 
 Hamlin (1894) 86 Me. 507, 30 Atl. 76. See chapter 2, § 2. 
 
 t Laws 1895, c. 96, Appendix, V. 
 
 (87)
 
 § 34 EXEMPTIONS, [Ch. 3 
 
 (k) Massacfatsctts. 54 
 
 (1) Father, mother, husband, wife. 
 
 (2) Lineal descendant. 
 
 (3) Brother, sister. 
 
 (4) Adopted child. 
 
 (5) Lineal descendant of adopted child. 
 (G) Wife or widow of a son. 
 
 (7) Husband of a daughter of decedent. 
 
 (8) Charitable, educational, or religious societies or insti- 
 tutions, the property of which is exempt by law from taxa- 
 tion. 
 
 (9) Estates of less than $10,000. 
 
 (10) Executors, compensation to. Excess taxable. 65 
 
 (1) New Jersey. 56 
 
 (1) Father, mother, husband, wife. 
 
 (2) Children. 
 
 (3) Brother or sister. 
 
 (4) Lineal descendants born in lawful wedlock: 
 
 (5) Wife or widow of a son. 
 
 (6) Husband of a daughter. 
 
 (7) Estates of less than $500. 
 
 (8) Churches, hospitals, orphan asylums, public libraries, 
 bible and tract societies, and all religious, benevolent and 
 charitable institutions and organizations. 
 
 (m) Ohio. 
 
 In Ohio there are (or at least there were) two statutes in 
 force, — one still in force imposing a tax of 5 per cent, upon 
 property passing to collaterals and strangers, enacted in 
 
 5 4 See Appendix, IV., Laws 1891, c. 425, § 1. Held constitutional 
 in Minot v. Winthrop (1894) 1G2 Mass. 116, 3S N. E. 512. See Laws 
 1S93, c. 2, § 2. 
 
 6 5 Laws 1891, c. 425, § 3. 
 
 56 See Appendix, II., Laws N. J. 1S94, c. 210, repealing Laws 1892, 
 c. 210, § 1; Laws 1893, c. 210. 
 (88)
 
 Ch. 3] EXEMPTIONS. § 34 
 
 1893; 57 and the other, passed in 1894, and recently declared 
 unconstitutional^ imposing a graduated directed inherit- 
 ance tax of 1 to 5 per cent, upon property passing to lineal s 
 and others. 58 
 
 (1) Exemptions under Ohio Collateral Inheritance Act of 1893. 
 
 (1) Father, mother, husband, wife. 
 
 (2) Brother, sister. 
 
 (3) Niece, nephew. 
 
 (4) Lineal descendants. 
 
 (5) Adopted child, or 
 
 (6) Person recognized as adopted child. 5 * 
 
 (7) Lineal descendant thereof. 
 
 (8) Lineal descendant of adopted child. 
 
 (9) Wife or widow of a son. 
 
 (10) Husband of daughter of decedent. 
 
 (11) f 200 from appraised value. 
 
 (12) Bequests to executors, etc., in lieu of commissions. 
 Excess taxable. 
 
 (2) Exemptions under Direct Inheritance Act of 1894. 
 
 By the Ohio act of 1894, 60 the direct inheritance tax is 
 imposed upon property passing to the persons enumerated 
 above, — class 1 to 10, inclusive, — as follows: 
 
 57 See Appendix, VI. a. Constitutionality of these acts discussed 
 in Ohio Leg. News, Jan. 12, 1S95, p. 183; Id. Act Jan. 27, 1803, p. 17. 
 
 % See chapter 2, § 18. 
 
 58 See Appendix, VI. a., Laws 1894, p. 169, § 1. This act has been 
 declared unconstitutional, as violating the provisions of the state con- 
 stitution requiring equality and uniformity. See State v. Ferris, 9 
 Ohio Cir. Ct. R. 299, affirmed 23 Wkly. Law Bui. (Ohio) July 1, 
 1S95, 349, 352. Opinion will be published in N. E. Rep. as soon as 
 handed down. 
 
 59 Under section 4182, Rev. St. Ohio. 
 
 so See Appendix, VI., declared unconstitutional in State v. Ferris, 
 supra, as violating the rule of uniformity and equality, under section 
 2, art. 12, Const. Ohio, and article 14, § 1, Const U. S. 
 
 (89)
 
 § 34 
 
 EXEMPTIONS. 
 
 [Ch. a 
 
 When the value of the entire property of such decedent 
 exceeds the sum of 
 
 50,000 
 
 100,000 
 
 200,000 
 
 300,000 
 
 500.000 ?>\% 
 
 1,000,000 4 % 
 
 5 % 
 
 1 % 
 H % 
 
 2 % 
 
 3 % 
 
 $ 20,000 and does not exceed $ 
 50.00!) 
 100.000 
 200.000 
 300,000 
 500.000 
 1,000,000 
 
 (n) Tennessee} 1 
 
 (1) Father. 
 
 (2) Mother. 
 
 (3) Husband, or 
 
 (4) Wife. 
 
 (5) Children. 
 
 (0) Brothers and sisters. 
 (7) Sons-in-law. 
 
 (S) Daughters-in-law. 
 (9) Grandchildren. 
 
 (o) Illinois. 62 
 
 There would seem to be no exemptions allowed under 
 this statute, except — 
 
 (1) Estates which may be valued at less than f 500. 63 
 
 (2) Estates which may be valued at a less sum than $20,- 
 000, where the estate passes to father, mother, husband, 
 wife, child, brother, sister, wife or widow of the son, or 
 the husband of the daughter, or any child or children 
 adopted as such in conformity with the laws of the state 
 of Illinois, or to any person to whom deceased, for not less 
 than 10 years prior to death, stood in the acknowledged 
 
 6i Laws 1891, c. 25; Laws 1S93, p. 347. 
 
 6 2 See statute, Appendix, X., taken from Laws of Illinois for 1895,. 
 by James B. Bradwell, Chicago Leg. News, 1895, p. 213. See Laws- 
 Ill. 1S95, Reg. & Ex. Sess. p. 301. 
 
 63 Id. § 1. 
 
 (90)
 
 Ch. 3] EXEMPTIONS. § 34 
 
 relation of a parent, or to any lineal descendant born in 
 lawful wedlock. 
 
 (The tax is to be levied in the above cases, only upon the 
 excess of $20,000 received by each person, at the rate of 1 per 
 cent.) 
 
 (3) Estates of $2,000 are exempt, but the excess of that 
 amount is taxable where the property passes to or for the 
 use of any uncle, aunt, niece, nephew, or any lineal descend- 
 ant of the same, where the tax is 2 per cent, upon such ex- 
 cess. 
 
 (4) In all other cases the rate is as follows on each and 
 every $100 of the clear market value of all property, and the 
 same rate for any less amount: On all estates of $10,000 
 and less, 3 per cent.; on all estates of over $10,000, and not 
 exceeding $20,000, 4 per cent.; on all estates over $20,000, 
 and not exceeding $50,000, 5 per cent.; and on all estates 
 over $50,000, 6 per cent. 64 
 
 (5) Life estates or estates for a term of years in some 
 cases also seem to be exempt 65 where the property shall be 
 bequeathed to mother, father, husband, wife, brother, and 
 sister, the widow of the son, or a lineal descendant during 
 the life or for a term of years, or remainder to the collateral 
 heirs of decedent, or to stranger in blood, or to body politic 
 or corporate at their decease, or on the expiration of such 
 term. "The said life estate or estates for a term of years 
 shall not be subject to any tax, and the property so passing 
 shall be appraised immediately after the death; * * * 
 and after deducting therefrom the value of said life estate, 
 or term of years," the tax transcribed by the act on the re- 
 mainder shall be due and payable. 
 
 64 Id. § 1. 65 id. § 2. 
 
 (91)
 
 § 35 EXEMPTIONS. [Ch. 3 
 
 (p) Minnesota. 
 
 By constitutional amendment passed in 1S94, provision is 
 made for an inheritance tax, 60 but no law lias yet been en- 
 acted. 
 
 § 35. Charitable, Religious, and Other Corporations 
 and Objects. 
 
 Under the general designation of charitable and religious 
 corporations and objects have been included, as claiming 
 exemptions under these acts, churches, cemeteries, alms- 
 houses, hospitals, dispensaries, orphan asylums, homes, 
 houses of industry, colleges, public libraries, museums of 
 art and history, societies to protect animals, benefit, insur- 
 ance, and Christian associations, and legacies to priests for 
 masses, and the like. 67 
 
 In England, under the legacy duty act, legacies to char- 
 itable and religious corporations were at first taxable with 
 the highest rate of duty. 68 Subsequently they were, to a 
 limited extent, exempted by statute. 69 
 
 In order to be exempted, it was held that the legacy for 
 charitable purposes must be expressly so given by the will 
 itself, and not be the subject of any secret trust. 70 But all 
 such legacies seem now to be made liable to succession duty, 
 
 so See chapter 11, § 11. 
 
 6 7 See Laws N. Y. 1S90, c. 553, Appendix, I., and Laws 1892, c. 399, 
 § 1; Laws 1S92, c. 169,— by which the list of such institutions entitled 
 to exemption is greatly extended. 
 
 es in re Griffiths, 14 Mees & W. 510; Ex parte Franklin, 3 Younge 
 & J. 544; In re Parker, 4 Hurl. & N. 666; In re Wilkinson, 1 Cromp. 
 M. & R. 142. 
 
 6» 56 Geo. III. c. 56; 5 & 6 Vict. c. 82. 
 
 ToCullen v. Attorney General, L. R. 1 H. L. 190. But see In re 
 Farley's Estate (Surr.) 15 N. Y. St. Rep. 727. 
 (02)
 
 Ch. 3] EXEMPTIONS. § 35 
 
 except in Ireland. 71 A bequest, absolute in form, to execu- 
 tors, pursuant to an understanding between them and tes- 
 tator, by which a valid parol trust was created in favor of 
 certain charitable corporations which are exempt from tax- 
 ation, is not subject to the legacy tax. 72 
 
 And where the testator bequeathed property to his ex- 
 ecutors to be disposed of as directed in a private memoran- 
 dum, which directed that a portion of the property should 
 be delivered to exempt persons, and another portion to non- 
 exempt persons, held, that the portion going to the latter 
 was taxable. 73 Where the legatee, a church, was proved 
 to have no existence, and another church proved itself en- 
 titled to the legacy, it was held taxable against the latter. 74 
 
 In the state of New York it has never been the general 
 policy wholly to exempt the real or personal property of 
 churches and colleges or charitable institutions from taxa- 
 tion. 75 Where the policy of complete exemption has been 
 adopted, it was by means of special acts applicable to par- 
 ticular and specified corporations; and in that state it is 
 said there is no general act exempting the personal property 
 of such 76 colleges or churches, 77 and the same policy has 
 
 7i 16 & 17 Vict. c. 51, § 16; 44 Vict. c. 12, § 42; Cullen v. Attorney 
 General, supra. 
 
 72 in re Murphy's Estate (1S93) 25 N. Y. Supp. 106, 4 Misc. Rep. 
 230, citing In re Haven's Estate (Surr.) 2 N. Y. Supp. 639; In re Far- 
 ley's Estate, supra. 
 
 " in re Swift (Surr.) 16 N. Y. Supp. 193. 
 
 74 In re Richards, N. Y. Law J. Feb. 28, 1891. 
 
 7 5 Catlin v. Trustees of Trinity College, 113 N. Y. 141, 20 N. E. 864; 
 Sherrill v. Christ Church, 121 N. Y. 701, 25 N. E. 50; In re Vassar, 
 127 N. Y. 8, 27 N. E. 394; In re Prime, 136 N. Y. 356, 32 N. E. 1091. 
 
 7 6 For general exemption statutes of New York, see page 77. supra. 
 
 77 But this policy was widely departed from by Act 1S92, c. 399, §§ 
 1, 2; Id. c. 169; and by the prior act of 1890 (chapter 553, Appendix, 
 I.),— which seem to exempt the corporations therein named, not only 
 from the collateral inheritance tax, but also from general taxation. 
 The propriety of such wholesale exemption is questionable. The 
 
 (93)
 
 § 35 EXEMPTIONS. [Ch. 3 
 
 prevailed in other states where these acts have been under 
 construction; 78 but the wisdom of expressly exempting 
 such associations or corporations as are purely charitable 
 from the collateral tax cannot be questioned, if for no other 
 reason than that such institutions, in various ways, and 
 principally by aiding, educating, and sheltering the poor, 
 sick, and destitute, both young and old, to a great extent 
 relieve the state from the burden of supporting such per- 
 sons. 79 
 
 But it is essential that the basis of such exemption 
 should clearly appear, either from the act itself imposing 
 the collateral tax, or in some act — general or special — re- 
 ferred to or meant to be included in the exemption words 
 of the statute; 80 for, without such express exemption, it is 
 clear that a mere exemption of the corporation or associa- 
 tion from general property taxation will not operate to re- 
 lieve a tax imposed, not upon property, but upon the succes- 
 sion thereto. 81 
 
 act has been held not retroactive. In re Minturn's Estate, 3 N. 
 Y. Law J. 804 (July 18, 1890); Sherrill v. Christ Church, supra, 
 reversing In re Van Kleeck, 55 Hun, 472, 8 N. Y. Supp. 80G. See In 
 re Waller, 3 N. Y. Law J. SG8 (July 28, 1890). These acts do not ap- 
 ply to foreign corporations. In re Prime, 136 N. Y. 356, 32 N. E. 1091. 
 
 78 Miller v. Corn., 27 Grat. 110; Barringer v. Cowan, 2 Jones, Eq. 
 436; Com. v. Herman, 16 Wkly. Notes Cas. 210-212. 
 
 79 Association for Benefit of Colored Orphans v. Mayor, etc., of New 
 York, 104 N. Y. 588, 12 N. E. 279; In re Prime, 136 N. Y. 362, 32 N. 
 E. 1091; In re Curtis' Estate (Suit.) 7 N. Y. Supp. 207; Home of the 
 Friendless v. Rouse, 8 Wall. 436; People v. Commissioners of Taxes 
 and Assessments, 36 Hun, 311; In re Keech, 57 Hun, 588, 11 N. Y. 
 Supp. 265,— distinguishing People v. Barber, 42 Hun, 27, and 106 N. Y. 
 669, 13 N. E. 936. 
 
 so Catlin v. Trustees of Trinity College, supra; In re Prime, supra; 
 In re Vassar, 127 N. Y. 1, 27 N. E. 398; In re Chittenden, N. Y. Law 
 J. June 5, 1890; In re Lenox's Estate, 5S Hun, 116, 11 N. Y. Supp. 
 310. 
 
 si Miller v. Com., 27 Grat. 110; Barringer v. Cowan, 2 Jones, Eq. 
 (94)
 
 Clj. 3] EXEMPTIONS. § 35 
 
 The statutes of New York and Connecticut both seem to 
 meet this requirement, because by express terms the tax in 
 New York is imposed, under the act of 1887, upon property 
 passing to any "body politic or corporation * * * other 
 than to * * * the societies, corporations, and institu- 
 tions now exempted by law from taxation." 82 
 
 By the act of 1892 83 all "persons or corporations not ex- 
 empt by law from taxation on real or personal property" 
 are taxed; and, by section 2, "any property heretofore or 
 hereafter devised or bequeathed to any person who is a 
 bishop or to any religious corporation, is exempted." 84 
 
 Some of the main difficulties under these clauses of the 
 statutes appear to have been to ascertain precisely, from 
 the general language used, — First, the particular societies, 
 institutions, and corporations meant to be exempted; 85 
 whether the language is restricted to those that are merely 
 charitable or religious in their nature, or whether, more 
 liberally speaking, the term includes other corporations not 
 strictly charitable, but public in nature; 86 and, second, 
 
 430; Com. v. Herman, 16 Wkly. Notes Cas. 210-212. See In re Keith's 
 Estate (Surr.) 5 N. Y. Supp. 201; In re Van Kleeck, 55 Hun, 472, S 
 .N. Y. Supp. 806, reversed as Sherrill v. Christ Church, 121 N. Y. 
 701, 25 N. E. 50. See Current Comment and Legal Miscellany for 
 March, 1S91 (Pa.) p. 177. 
 
 82 As to a strict construction of this clause, see Catlin v. Trustees of 
 Trinity College, 113 N. Y. 133, 20 N. E. 801, affirming 49 Hun, 278, 
 1 N. Y. Supp. 808; People v. Commissioners of Taxes and Assess- 
 ments, 19 Hun, 463, 404; In re Miller, 5 Dem. Sur. 132, affirmed 45 
 Hun, 244; In re Herr's Will, 55 Hun, 167, 7 N. Y. Supp. 852; In re 
 Van Kleeck, 55 Hun, 472, 8 N. Y. Supp. 806, reversed as Sherrill v. 
 ■Christ Church, supra. See Appendix, I. b, Laws 1890, c. 553. 
 
 83 Laws 1S92, c. 399, § 1. 
 
 8t See, also, Laws 1892, c. 169; Roman Catholic Church of the 
 Transfiguration v. Niles, 86 Hun, 221, 33 N. Y. Supp. 243. 
 
 8 5 This is, perhaps, obviated by chapter 553, Laws 1S90, and Laws 
 1892, supra. 
 
 86 A public library is exempt. People v. Commissioners of Taxes 
 
 (95)
 
 § 35 EXEMPTIONS. [Ch. 3 
 
 whether the words "exempted from taxation" mean that 
 the societies or corporations shall be exempted from all tax- 
 ation whatsoever, 87 or whether, being charitable or reli- 
 gious associations within the definition of the law, and 
 having their property exempt either by special or general 
 statute, that is sufficient to bring them within the terms of 
 the law. 
 
 These questions, and many others, have been only partial- 
 ly answered by the numerous decisions in the courts of New 
 York. It would, perhaps, have been more satisfactory had 
 these acts expressly stated that only such charitable, reli- 
 gious, and purely public corporations should be exempted 
 from the collateral tax as were already, or should be there- 
 after, expressly exempted under general or special statute 
 from taxation upon their property. This objection is per- 
 haps obviated by the recent act of 1S90, and by that of 
 1892. In this respect, while the statute of Connecticut is 
 more specific in confining exemptions to gifts or devises for 
 charitable or strictly public purposes, 88 it expressly extends 
 these terms so as to include educational, benevolent, ecclesi- 
 astical, or missionary corporations, associations, or objects. 
 
 The uniform interpretation placed upon the language of 
 the Xew York statute in force prior to the act of 1890 tend- 
 ed very much to restrict its meaning to include merely such 
 institutions and corporations as were purely charitable or 
 public, and exempt, as such, from a property tax, either by 
 general statute 89 or by special act. If, finally, neither of 
 
 & Assessments, 11 Hun, 505; In re Herr's Will, 55 Hun, 1G7, 7 N. Y. 
 Supp. 852; In re Lenox's Estate (Suit.) 9 N. Y. Supp. 895. But see 
 In re Chittenden, N. Y. Law J. June 5, 1890. 
 
 87 This was held not necessary in Re Vassar, 127 N. Y. 8, 27 N. E. 
 394. 
 
 88 Appendix, VII. § 17. 
 
 89 2 Rev. St (Banks' 8th Ed.) c. 13, p. 1084. 
 (96)
 
 Ch. 3] EXEMPTIONS. § 35 
 
 these sources afforded any ground for exemption, the claim 
 thereto was disallowed. 90 
 
 Claims for exemption have therefore been made upon the 
 theory — First, that the claimants were, as colleges and 
 churches, and museums of art and history, exempt under 
 general statutes as "incorporated companies"; 91 second, up- 
 on the ground that hospitals, dispensaries, asylums, 92 ceme- 
 teries, homes, and the like institutions were exempt under 
 general or special statutes, as almshouses, homes for sea- 
 men, poorhouses, buildings for public worship, 93 public libra- 
 ries, and the like; 94 and, third, upon various miscellaneous 
 
 so Catlin v. Trustees of Trinity College, 113 N. Y. 138, 20 N. E. 
 864. Distinguished in Re Vassar, 127 N. Y. 8, 27 N. E. 397. 
 
 si Catlin v. Trustees of Trinity College, supra; People v. Coleman, 
 112 N. Y. 565, 20 N. E. 389. See Catlin v. Domestic & Foreign Mis- 
 sionary of P. E. Church, 113 N. Y. 625, 20 N. E. 867; Sherrill v. Christ 
 Church, 121 N. Y. 701, 25 N. E. 50; In re Vanclerbilt's Estate (Surr.) 
 10 N. Y. Supp. 239; In re Kennedy, N. Y. Law J. April 25, 1890. 
 They are now exempt, it seems, by Laws 1S90, c. 553. See Ap- 
 pendix, V. 
 
 92 See Laws 1890, supra. 
 
 93 See Laws 1S90, supra. 
 
 9* Estate Ellen Thompson, N. Y. Daily Reg. Nov. 14, 1S89; In re 
 Keech's Estate (Surr.) 7 N. Y. Supp. 331, affirmed as In re Keech's 
 Estate, 57 Hun, 588, 11 N. Y. Supp. 265; In re Vanderbilt's Estate 
 (Surr.) 10 N. Y. Supp. 239; In re Kennedy, N. Y. Law J. April 25, 
 1890; In re Chittenden, Id. June 5, 1890; In re Quinn, N. Y. Daily 
 Reg. July 24, 1S89; In re Dewey's Estate, N. Y. Law J. Oct. 21, 1SS9; 
 In re Curtis' Estate (Surr.) 7 N. Y. Supp. 201; In re Miller, 5 Dem. 
 Sur. 132, affirmed 45 Hun, 244; In re Lenox (Surr.) 9 N. Y. Supp. 895; 
 In re Herr's Will (Surr.) 5 N. Y. Supp. 48, reversed 55 Hun, 167, 7 N. 
 Y. Supp. 852; Church Charity Foundation v. People, 6 Dem. Sur. 154; 
 s. c, In re Hunter, 11 N. Y. St. Rep. 704; In re Hochster's Estate, 
 N. Y. Law J. Jan. 22, 1S90; Association for Benefit of Colored Orphans 
 v. Mayor, etc., of New York, 104 N. Y. 588, 12 N. E. 279; In re Van 
 Kleeck, 55 Hun, 472, 8 N. Y. Supp. 806, reversed as Sherrill v. Christ 
 Church, 121 N. Y. 701, 25 N. E. 50; In re Minturn, N. Y. Law J. July 
 LAW INHER. 7 (97)
 
 § 35 EXEMPTIONS. [Ch. 3 
 
 grounds, as that the legacies were for masses and similar 
 purposes. 
 
 The leading case in New York, under the first proposi- 
 tion, is that of Catlin v. Trustees of Trinity College, 95 where 
 decedent had bequeathed legacies to two institutions, — one 
 a church, and the other a college, — both of which claimed 
 exemption upon the general ground that they were includ- 
 ed within the term "incorporated companies," as defined by 
 general law. 96 
 
 But in defining the general policy of the state as being 
 against the complete exemption of colleges, churches, char- 
 itable, and religious institutions from taxation, unless ex- 
 empted by general law or special charter, 97 it was held that 
 the words "incorporated companies" did not include such 
 religious, literary, or charitable institutions, 98 but referred 
 to certain business corporations, and, therefore, that the 
 claimants, not showing any general or special statutory ex- 
 emption, were not within the meaning of the term "ex- 
 empted by law from taxation," under the act of 18S5. 99 
 
 2, 1890; In re Noyes, Id. July 5, 1890;' In re Vassar, 127 N. T. 
 8, 27 N. E. 394. This case overrules, in some respects, In re Vander- 
 bilt's Estate, In re Keech, and In re Lenox, supra. 
 
 6 5 H3 N. Y. 137, 20 N. E. S64, affirming 49 Hun, 27S, 1 N. Y. Supp. 
 808. See Catlin v. Domestic & Foreign Missionary Soc. of P. E. 
 Church, 113 N. Y. 625, 20 N. E. 867. This doctrine has recently been 
 reiterated by the same court in Sherrill v. Christ Church, supra. 
 
 »0 See supra, p. 79, note 23; 2 Rev. St. (Banks' 8th Ed.) p. 1084, 
 c. 13, § 7. 
 
 97 See In re Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 239; In re 
 Chittenden, supra; In re Lenox's Estate, 58 Hun, 116, 11 N. Y. Supp. 
 310. 
 
 as Now exempt by Laws 1S92, c. 399, § 2; Laws 1S92, c. 1G9; and 
 Laws 1890, c. 553,— Appendix, I. b, c, e. 
 
 99 The words "incorporated company," used in Rev. St. subd. 7, 
 supra, p. 79, refer to certain moneyed or stock corporations not de- 
 riving any income or profit from capital or otherwise. They were 
 applied merely to banking or loan institutions and insurance com- 
 panies. 1 Rev. St. 598, § 51; 2 Potter, Corp. p. 518, § 435, and cases 
 (98)
 
 Ch. 3] EXEMPTIONS. § 35 
 
 This was the extent of the decision made, the court say- 
 ing: "We know of no general statute exempting the per- 
 sonal property of religious societies or colleges from taxa- 
 tion." 
 
 A hospital whose real and personal property were exempt 
 from taxation by special charter was held exempt from this 
 tax, also as an almshouse. The same rule was applied to 
 a college whose property was specifically exempted. 100 
 
 It seems that a corporation established as an "institu- 
 tion of learning for the scientific, classical, and theological 
 education of colored youth of the male sex" is not a reli- 
 gious corporation within the meaning of the act of 1892. 101 
 
 Museums of art and history are not within the term "in- 
 corporated companies"; 102 and it seems> whether they are 
 so or not, if they derive an income from capital or other- 
 wise, they are liable to taxation. 103 
 
 Columbia College is exempt from the legacy tax under 
 the act of 1S90, notwithstanding, by special charter, it may 
 own property exceeding three millions of dollars; 104 and 
 the public library in the city of Brooklyn is also exempt. 105 
 
 Boards of foreign missions, not exempted by general law 
 
 cited; Catlin v. Trustees of Trinity College, 113 N. Y. 137, 20 N. B. 
 864; In re Vassar, 127 N. Y. 8, 27 N. E. 394. And see Utica Cotton 
 Manuf'g Co. v. Supervisors of Oneida, 1 Barb. Ch. 432; People v. 
 Supervisors of New York, 18 Wend. 605; People v. Board of Sup'rs 
 of Niagara Co., 4 Hill, 20, affirmed 7 Hill, 504, 518; People v. Board 
 of Sup'rs of New York, 16 N. Y. 438; People v. Cassity, 46 N. Y. 
 53; In re Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 239. As to what 
 does not constitute "income" as regards hospitals, see People v. Purdy, 
 58 Hun, 386, 12 N. Y. Supp. 307. 
 
 ioo in re Vassar, 127 N. Y. 8, 27 N. E. 396-398. 
 
 ioi Chapter 399, § 2; In re Fayerweather (Surr.) 30 N. Y. Supp. 273. 
 
 i°2 In re Vanderbilt's Estate, supra. 
 
 103 in re Vanderbilt's Estate, supra. See, also, In re Chittenden, 
 N. Y. Law J. June 5, 1890; Laws 1890, c. 553; Appendix, I. b. 
 
 104 Laws 1S90, c. 553; In re Da Costa, N. Y. Law J. March 12, 1891. 
 los Laws N. Y. 1892, c. 441, § 9. 
 
 (99)
 
 § 35 EXEMPTIONS. [Ch. $ 
 
 or special statute, are liable to tax, and especially when 
 they are foreign corporations. 106 
 
 And in North Carolina and Virginia bequests to colleges 
 and churches have been held liable to this tax under stat- 
 utes which did not exempt corporations, notwithstanding 
 that they were otherwise expressly relieved from general 
 taxation. 107 
 
 While in Pennsylvania, under general statutes, it has 
 been held that a college founded and maintained by dona- 
 tions, open to all sects and to visitation by the state, and 
 making no profit, although taking a tuition fee, is a public 
 charity, and as such exempt. 108 
 
 This result, however, was not reached under the collat- 
 eral inheritance tax; and public charities are not. exempt 
 from the statutes in that state. 109 
 
 But real estate conveyed gratuitously to a charitable 
 corporation chartered to give free instruction in the natural 
 sciences, and held and rented by it as a source of income 
 to carry out its purpose, is neither a "gift," "bequest," nor 
 "endowment," within the meaning of a statute exempting 
 all gifts, bequests, or endowments belonging to it from tax- 
 ation. 110 
 
 106 See In re Prime, 136 N. Y. 356, 32 N. E. 1001; In re Lenox's 
 Estate, 58 Hun, 116, 11 N. Y. Supp. 310, 311. 
 
 107 Barringer v. Cowan, 2 Jones, Eq. 436; Miller v. Com., 27 Grat. 
 110; Com. v. Herman, 16 Wkly. Notes Cas. 210, 212. 
 
 108 Northampton College v. Lafayette College, 46 Leg. Int. 423. 
 
 109 See valuable note by John M. Gest, Esq., of Philadelphia bar, in 
 Current Comment and Legal Miscellany for March 15, 1891, p. 117; 
 Philadelphia v. Women's Christian Ass'n (1889) 125 Pa. St. 572, 17 
 Atl. 475; Philadelphia v. Pennsylvania Hospital, 47 Leg. Int. 70; 
 Pennsylvania cases commented upon in Re Vassar, 127 N. Y. 8, 27 N. 
 E. 397, 398. 
 
 no Wagner Institute v. City of Philadelphia, 9 Cent. Rep. 617. And 
 see 19 Abb. N. C. 231, for note on cases as to exemption of religious 
 corporations from taxation. 
 (100)
 
 Ch. 3] EXEMPTIONS. § 35 
 
 Under the second proposition, claims for exemption have 
 "been made by various institutions upon the ground that 
 they were almshouses, poorhouses, houses of industry, 
 homes for seamen, cemeteries, schoolhouses, houses for pub- 
 lic worship, public libraries, and the like, within the pro- 
 visions of general or special statutes. 111 
 
 While the cases upon this subject are not altogether har- 
 monious, the question, however, as to what constitutes an 
 "almshouse" under the general statute, has been before the 
 court of appeals of New York; and a private institution 
 engaged in aiding orphans, giving them clothing and educa- 
 tion gratuitously, was defined to be an almshouse, as per- 
 forming a work of pure charity, and was consequently held 
 exempt from taxation. 112 
 
 Advantage has been taken of this doctrine, and in nu- 
 merous cases' arising under the inheritance tax laws, where 
 the claimant could bring itself within the principles laid 
 down in this case, it has been held to be one of the societies, 
 etc., "exempted by law from taxation." 113 
 
 Hence all societies are exempt, as almshouses, whose ob- 
 ject is to support, maintain, and educate orphans and half 
 orphans without charge; 114 and, so long as a society and 
 hospital wholly dependent upon voluntary contributions 
 comes within the definition of an almshouse, it is not neces- 
 sary that it should be specially exempt from taxation by spe- 
 
 111 See New York Rev. St. (Banks' 8th Ed.) c. 13, § 4. 
 
 112 Association for Benefit of Colored Orphans v. Mayor, etc., of 
 New York, 104 N. Y. 588, 589, 12 N. E. 279; In re Keech, 57 Hun, 
 588, 11 N. Y. Supp. 265; In re Forrester, 5S Hun, 611, 12 N. Y. Supp. 
 774. 
 
 ii3 For a list of societies and corporations in New York City held 
 liable to this tax, see In re Vanderbilt's Estate (Suit.) 10 N. Y. Supp. 
 239. See In re Chittenden, N. Y. Law J. June 5, 1890. 
 
 H4 in re Quinn's Estate, N. Y. Daily Reg. July 24, 1889; In re Mc- 
 Pherson, 5 Dem. Sur. 166-169. 
 
 (101)
 
 § 35 EXEMPTIONS. [Ch. S 
 
 cial law. Such an institution is a charitable institution. 115 
 In this case the surrogate (Coffin, S.) defined a hospital, 
 in its modern sense, to be a building, founded through char- 
 ity, where the sick and disabled may be treated solely at 
 their own expense, or at the sole expense of the corpora- 
 tion, which receives only indigent patients, and has thus 
 all the attributes of an almshouse. In either sense he held 
 such an institution is a charitable institution. Later cases, 
 however, hold that, wherever there is a charge made to the 
 patient, it is not an almshouse. 116 
 
 So a corporation engaged in maintaining a house for the 
 support of indigent and aged persons and of destitute chil- 
 dren, and hospitals and dispensaries for the relief of the 
 infirm, sick, and needy, which is maintained by voluntary 
 gifts, and which has no capital stock, and conducts no busi- 
 ness, is exempt as being in effect an almshouse, poorhouse, 
 or schoolhouse within the general exemption statutes. 117 
 
 And, where the institution dispenses its benefits without 
 any charge whatever, it seems the fact that it has no house 
 where the poor are lodged does not take it out of the alms- 
 house class if it provides the means for lodging. 118 
 
 us In re Curtis' Estate (Surr.) 7 N. Y. Supp. 207, citing Association 
 for Benefit of Colored Orphans v. Mayor, etc., of New York, 104 N. 
 Y. 5S9, 12 N. E. 279; People v. Commissioners of Taxes, 36 Hun, 311 ; 
 New York Infant Asylum v. Supervisors of Westchester Co., 31 Hun, 
 116, and reviewing Catlin v. Trustees, 113 N. Y. 137, 20 N. E. 864, 
 affirming 49 Hun, 278, 1 N. Y. Supp. 808. See, also, In re Miller, 5 
 Dem. Sur. 132; In re Hochster's Estate, N. Y. Law J. Jan. 22, 1890. 
 Contra, In re Herr's Will (Surr.) 5 N. Y. Supp. 48, reversed in 55 Hun, 
 167, 7 N. Y. Supp. 852; In re Neale's Estate (1S90) 57 Hun, 591, 10 N. 
 Y. Supp. 713. 
 
 ne See In re Keech, 57 Hun, 588, 11 N. Y. Supp. 265, and cases 
 post, p. 108, note. 
 
 n7 Church Charity Foundation v. People, 6 Dem. Sur. 154; In re 
 Hunter, 11 N. Y. St. Rep. 704. 
 
 us In re Lenox's Estate (Surr.) 9 N. Y. Supp. S95. But this would 
 (102)
 
 Ch. 3] EXEMPTIONS. § 35 
 
 Where a charitable institution is originally exempt un- 
 der general law as an almshouse, but subsequently a spe- 
 cial statute is passed exempting its real estate solely, it 
 becomes liable to the legacy tax, although as an almshouse 
 it might have been exempt; the court adopting the rule 
 "that where there has been a general enactment covering 
 the subject in general, in terms which include the particu- 
 lar case, and there is a subsequent enactment which makes 
 a rule for that particular, that the latter shall be held to 
 be all that the legislature at last meant for the regulation 
 of that case." 119 
 
 On the other hand, it has been asserted that notwith- 
 standing certain societies, such as homes, dispensaries, and 
 hospitals, are "almshouses" within the general exemption 
 statutes, as such exemption merely applies to the property 
 actually occupied by them, and the personal property actu- 
 ally contained therein, to entitle them to exemption under 
 the inheritance act it is still necessary that there should be 
 a total and absolute exemption from general taxation of all 
 property which they have or could have "under any and 
 every possible circumstance or condition," and that, if such 
 societies can hold any property which would be liable to 
 taxation, then they are liable under the inheritance act. 120 
 
 If it were necessary that such charitable association, in 
 
 seem to conflict with the definition of an almshouse, i. e. a house ap- 
 propriated to the poor,— for the use of the poor,— where they are to 
 have a place of refuge, and to be clothed, etc. People v. Commis- 
 sioners of Taxes, 36 Hun, 311; Association for Benefit of Colored 
 Orphans v. Mayor, etc., of New York, 104 N. Y. 5S9, 12 N. E. 279; 
 In re Keech, supra. 
 
 us In re Forrester, 58 Hun, 611, 12 N. Y. Supp. 774, citing Petro- 
 leum Co. v. Lacey, 63 N. Y. 426. 
 
 i2o In re Herr's Will (Suit.) 5 N. Y. Supp. 48, reversed in 55 Hun, 
 167, 7 N. Y. Supp. 852. Contra, In re Curtis' Estate (Surr.) 7 N. Y. 
 Supp. 207; In re Keith's Estate (Surr.) 5 N. Y. Supp. 201; In re 
 Hochster's Estate, N. Y. Law J. Jan. 22, 1S90, and cases cited supra. 
 
 (103)
 
 § 35 EXEMPTIONS. [Ch. 3 
 
 order to come within the exemption clause, should show 
 that it was exempt from all taxation whatever under every 
 possible circumstance and condition, few corporations, even 
 those purely charitable, would or could ever be allowed ex- 
 emption under these acts. The result of such a condition 
 of the law would be in effect to nullify the express exemp- 
 tion which is extended to all societies, institutions, and cor- 
 porations "now exempted by law from taxation." 121 
 
 Hence, it would seem that the act does not mean that 
 such societies shall be exempt from all possible taxation. 
 This the legislature could hardly have intended, because it 
 is well settled that even though charitable corporations are, 
 by general statute, relieved in most positive and general 
 language from all taxation, this does not in every case re- 
 lieve them from certain special taxes; and such the col- 
 lateral inheritance tax of this state has been decided to 
 be. 122 
 
 But it would seem that the law is fully complied with 
 when it has been satisfactorily shown that the claimant is 
 a charitable institution, exacting no fee or reward, and 
 purely such under either special or general law, as has been 
 held in regard to an almshouse, 123 and is generally exempt 
 from taxation. 
 
 These views have been fully sustained by the court of 
 appeals, 124 where Haight, J., said: "The court below ap- 
 
 121 In re Vassar, 127 N. Y. 8, 27 N. E. 394. 
 
 122 See In re McPherson, 104 N. Y. 317, 10 N. E. 685; In re Enston's 
 Will, 113 N. Y. 174, 21 N. E. S7; Cooley, Tax'n (2d Ed.) 200, 207, and 
 cases cited, page 207, note 3; Barringer v. Cowan, 2 Jones, Eq. 436; 
 Miller v. Com., 27 Grat. 110. 
 
 123 Association for Benefit of Colored Orphans v. Mayor, etc., of 
 New York, 104 N. Y. 5S9, 12 N. E. 279, and cases supra; In re Herr's- 
 Will, 55 Hun, 167, 7 N. Y. Supp. 852, reversing 5 N. Y. Supp. 4S; In 
 re Miller, 5 Dem. Sur. 132. 
 
 124 In re Vassar, 127 N. Y. 10, 27 N. E. 396, reversing 58 Hun, 37S, 
 12 N. Y. Supp. 203, and overruling In re Keech (Suit.) 7 N. Y. Supp. 
 
 (104)
 
 Ch. 3] EXEMPTIONS. § 35 
 
 pears to have been of the opinion that the provision of the 
 act excepting the societies, corporations, and institutions 
 now exempted by law from taxation referred only to those 
 bodies which enjoy complete immunity from taxation as 
 to all property which they now have or of which they may 
 at any time become possessed, even in excess of the stat- 
 utory limit. 125 Such a construction of the statute would 
 practically nullify the provision, and render exemptions 
 from taxation contained therein of no avail. It could sub- 
 ject every, or nearly every, charitable institution in the land 
 to the payment of the tax." 
 
 A home for the aged which under its by-laws charges an 
 admission fee is not therefore subject to collateral tax, not- 
 withstanding it fails, by reason of such charge, to come 
 within the almshouse class, where there is no element of 
 profit or private gain by the corporation. 126 
 
 A cemetery declared by law to be exempt from all public 
 tax, so long as the same shall remain dedicated to the pur- 
 poses of a cemetery, is exempt; 127 and a bequest in trust 
 to pay to a church a certain sum towards the building of 
 a new church, or the renovation of the present one, is ex- 
 empt as a building of public worship, although the new 
 church was built and paid for through a loan in anticipa- 
 tion of the payment of the legacy by the executors. If, how- 
 ever, the gift had been an absolute one, and not for build- 
 ing the new church, it seems the legacy would have been 
 
 331, and 57 Hun, 588, 11 N. Y. Supp. 265; In re Lenox's Estate (Surr.) 
 9 N. Y. Supp. 895; In re Vanderbilt's Estate (Sun-.) 10 N. Y. Supp. 239. 
 
 125 See Appendix, I. b, Laws N. Y. 1890, c. 553. 
 
 126 in re Vassar, supra, citing Association for Benefit of Colored 
 Orphans v. Mayor, etc., of New York, 104 N. Y. 581, 12 N. E. 279 
 Philadelphia v. Women's Christian Ass'n, 125 Pa. St. 572, 17 Atl. 475 
 Northampton Co. v. Lafayette College, 128 Pa. St. 132, 18 Atl. 516 
 Seminary v. Cramer, 98 N. Y. 121. 
 
 127 in re Dewey's Estate, N. Y. Law J. Oct. 21, 1889 
 
 (105)
 
 § 35 EXEMPTIONS. [Ch. 3 
 
 liable. 128 This view of the law, however, has recently been 
 rejected by the court of appeals, and the legacy held liable 
 to the tax, 120 upon the ground that it was simply a legacy 
 of money. 
 
 So, under the English law, where money is bequeathed, 
 whether to those who administer a charity, or who admin- 
 ister funds for any public purpose, ecclesiastical or other- 
 wise, it is subject to legacy duty, inasmuch as it is consid- 
 ered a legacy for the benefit of strangers in blood to the 
 testator. 130 
 
 Religious corporations in New York are now expressly 
 exempted from this tax. 131 This is held, however, not to 
 exempt foreign religious corporations. 132 So a society for 
 the improvement of the moral condition of seamen is ex- 
 empt under general law. 133 
 
 But the mere fact that a society or corporation not ex- 
 empted by special charter or general law is exempted upon 
 a portion of its property is of no avail; 134 and a bequest to 
 a missionary society known as "The Paulist Fathers," which 
 could not show special or general exemption, was held 
 liable. 135 
 
 The board of foreign missions is not exempt from this 
 
 128 in re Van Kleeck, 55 Hun, 472, 8 N. Y. Supp. 806, citing Catlin 
 v. Trustees of Trinity College, 113 N. Y. 333, 20 N. E. 864. Contra, 
 In re Parker, 5 Jur. (N. S.) 1058. 
 
 129 Sherrill v. Christ Church, 121 N. Y. 701, 25 N. E. 50, reversing 
 In re Van Kleeck, supra. 
 
 1 30 In re Parker, supra. 
 
 i3i Laws 1890, c. 553; Laws 1892, c. 399, § 2; Id. c. 169. Appen- 
 dix, I. 
 
 132 See cases section 36. 
 
 133 in re Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 239. 
 
 134 in re Keith's Estate (Surr.) 5 N. Y. Supp. 201; In re Vanderbilt's 
 Estate, supra; In re Kennedy, 3 N. Y. Law J. (April 25, 1890); In re 
 Minturn's Estate, Id. 804 (July 2, 1890). 
 
 135 in re Kavanagh's Estate (Surr.) 6 N. Y. Supp. 669. 
 
 (100)
 
 Ch. 3] EXEMPTIONS. § 35 
 
 tax under the acts of 1885 or under that of 1890 (chapter 
 553). 130 
 
 So a charitable institution, 137 a home for the aged, ex- 
 acting an admission fee, and requiring an applicant to 
 make a will leaving all property to it, is not an almshouse 
 under the general law; 138 and an institution requiring pu- 
 pils to pay, if they are able so to do, is not, it seems, a pure- 
 ly charitable institution, within the meaning of an alms- 
 house, 139 the theory being that any charge, however small, 
 takes the claimant out of the almshouse class. In one case 
 this rule was carried to the extent of imposing the tax upon 
 an institution which made a paltry charge for taking care 
 of poor infants. 140 
 
 The exemption from taxation of any building used for 
 public worship 141 does not constitute a general exemption 
 of a church from taxation, within the meaning of the ex- 
 ception in the collateral tax act "of corporations and insti- 
 tutions now exempt by law from taxation." 142 
 
 Recently the court of appeals of New York has been 
 
 136 in re Prime, 136 N. Y. 347, 32 N. E. 1091; In re Tuigg's Estate 
 •(Suit.) 15 N. Y. Supp. 548. 
 
 137 Now exempt by Laws N. Y. 1S90, c. 553. Appendix, I. b. 
 
 13 8 in re Lenox's Estate (Surr.) 9 N. Y. Supp. S95; In re Keeeh's 
 Estate (Suit.) 7 N. Y. Supp. 331, affirmed in 57 Hun, 5SS. 11 N. Y. 
 Supp. 2G5; In re Thompson's Estate, N. Y. Daily Reg. Nov. 14, 1889. 
 But see In re Vassar (1891) 127 N. Y. 8, 27 N. E. 394. 
 
 139 In re Hochster's Estate, 2 N. Y. Law J. 19S1 (Jan. 22, 1S90). 
 And see Congregation Kal Israel Auschi Poland v. City of New 
 York (Sup.) 1 N. Y. Supp. 35; People v. Barber, 42 Hun, 27; In re 
 Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 239. See, also, In re Min- 
 tum's Estate, supra; In re Noyes' Estate, 3 N. Y. Law J. 914 (July 5, 
 1890) ; In re Keeeh's Estate, supra, 
 
 140 in re Vanderbilt's Estate, supra; In re Lenox's Estate, supra; 
 In re Chittenden, 3 N. Y. Law J. 501 (June 5, 1890). These cases are 
 now all overruled in Re Vassar, supra. 
 
 i4i 1 Rev. St. N. Y. p. 388, § 4, subsec. 3. 
 
 142 Sherrill v. Christ Church (1890) 121 N. Y. 701, 25 N. E. 50, re- 
 
 (107)
 
 § 35 EXEMPTIONS. [Ch. 3 
 
 called upon to determine the liability of hospitals, colleges, 
 and homes where a charge or admission fee is made to the 
 applicants or inmates. 143 
 
 In the Vassar Case the corporation was organized to car- 
 ry on a home for aged, indigent Protestant men who were 
 unable to support themselves. The by-laws, however, pro- 
 vided that the applicant should pay certain admission fees, 
 running from $100 to $250, and should further transfer to 
 the home any property he should have. The lower courts 
 held, following a line of cases based upon the Orphan Asy- 
 lum Case, 144 that this particular institution was liable to 
 the collateral inheritance tax. In reversing this decision, 
 however, the court said: 
 
 "Corporations are given the power to make by-laws not 
 inconsistent with any existing law for the management of 
 their property, the regulation of their affairs, etc. 145 The 
 home is not exempt under the provisions of any special act. 
 If exempt it is because of its being an almshouse, within the 
 provisions of the Revised Statutes to which we have al- 
 ready referred. It would be an almshouse, were it not for 
 the fact that under its by-laws an entrance fee is charged • 
 to those seeking its benefits. 146 
 
 "It is claimed that the by-laws referred to are unauthor- 
 ized, and inconsistent with the provisions of the charter; 
 that the business and object was the support of aged and 
 indigent Protestant men who were unable to support them- 
 selves. However that may be, we are of the opinion that 
 
 versing 55 Hun, 472, 8 N. Y. Supp. 806. See In re Forrester (Sup.) 
 12 N. Y. Supp. 774. 
 
 143 in re Vassar, 127 N. Y. 8, 27 N. E. 394, reversing (Sup.) 12 N. Y. 
 Supp, 203. 
 
 144 104 N. Y. 581, 12 N. E. 279. 
 
 145 2 Rev. St. (7th Ed.) 1531, § 6. 
 
 146 Association for Benefit of Colored Orphans v. Mayor, etc., of 
 New York, 104 N. Y. 581, 12 N. E. 279. 
 
 (108)
 
 Ch. 3] EXEMPTIONS § 35 
 
 the charges authorized by the by-laws do not operate to 
 deprive the home of the exemption to which it otherwise 
 would be entitled. The home was founded, incorporated, 
 endowed, and so far has been substantially maintained, by 
 charity. Its object, as we have seen, is the support of the 
 aged and indigent who are unable to support themselves. 
 It possesses no element of private or corporate gain, and 
 whatever income it may derive is devoted to the charity 
 for which it is incorporated." 
 
 The court cited, to sustain these views, various cases 
 which did not arise under collateral inheritance tax stat- 
 utes, and in which it was held that a charge imposed upon 
 applicants for membership to various charities did not de- 
 prive such charities of the character of charitable institu- 
 tions, exempting them from general taxation, 147 and, to this 
 extent, seems to have overruled the general rule established 
 in the lower courts upon authority of the Orphan Asylum 
 Case, already referred to, — that such a charge deprived the 
 institution of its almshouse character, and thus of exemp- 
 tion from the collateral inheritance tax. 148 
 
 There are several objections to the soundness of the rule 
 announced in this case: 
 
 (1) It is difficult to see how any institution which makes 
 a charge to inmates, and claims a right to take their prop- 
 erty at death, can be characterized as a charitable institu- 
 tion, or at least as an almshouse, within the definition given 
 
 1*7 See Philadelphia v. Women's Christian Ass'n, 125 Pa. St. 572, 17 
 Atl. 475; Northampton Co. v. Lafayette College, 12S Pa. St. 132, 18 
 Atl. 516. See this question considered under the Pennsylvania stat- 
 ute by John M. Gest, Esq., of the Philadelphia bar, in Current Com- 
 ment and Legal Miscellany for March 15, 1891, p. 177. Gooch v. 
 Association, 109 Mass. 55S; McDonald v. Massachusetts General Hos- 
 pital, 120 Mass. 432; Temple Grove Seminary v. Cramer, 98 N. Y. 121. 
 
 i*8 See In re Keech's Estate (Suit.) 7 N. Y. Supp. 331, affirmed 
 (Sup.) 11 N. Y. Supp. 265; In re Lenox's Estate (Surr.) 5 N. Y. Supp. 
 895; In re Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 239-242. 
 
 (109)
 
 § 35 EXEMPTIONS. [Ch. 3 
 
 by the court of appeals in the Orphan Asylum Case; 149 and 
 Mr. Justice Haight, in citing this case, said, in speaking of 
 the institution under consideration, "It would be an alms- 
 house, were it not for the fact that under its by-laws an 
 entrance fee is charged to those seeking its benefits." Yet 
 the court practically exempted this institution on no other 
 ground than that it was an almshouse. 
 
 (2) As the court also conceded that the "home is not ex- 
 empt under the provisions of any special act," the rule laid 
 down in this case would also seem clearly to conflict with 
 the prior decision of Catlin v. Trustees of Trinity College, 150 
 for in that case the rule unanimously established was that 
 the policy of the state was against the complete exemption 
 of charitable institutions from taxation, unless exempt by 
 general law or special charter. 
 
 So it has been held that where a statute 151 exempted 
 from taxation that portion of the property of a hospital 
 society "from which no income is derived," and the society 
 had a farm used exclusively for its charter purposes, and 
 which was not self-supporting, the products of which were 
 almost entirely used in the hospital, except that occasional- 
 ly articles were sold, and the proceeds applied to the hos- 
 pital inmates on the farm, held, that such proceeds were 
 not income under the statute, and that the exemption was 
 not waived by the society charging patients able to pay, 
 the money received from them being wholly applied to the 
 support and attendance of patients who could not pay. 152 
 
 Under the constitution of Pennsylvania, to exempt an in- 
 
 149 Association for Benefit of Colored Orphans v. Mayor, etc., of 
 New York, 104 N. Y. 581, 12 N. B. 279. 
 
 iso H3 N. Y. 133, 138, 20 N. E. 864. 
 
 i5i Laws N. Y. 18S9, c. 462. 
 
 152 People v. Purely (Sup.) 12 N. Y. Supp. 307, citing Temple Grove 
 Seminary v. Cramer, 98 N. Y. 121; Philadelphia v. Pennsylvania 
 Hospital, 47 Leg. Int. 70. 
 (110)
 
 <Jh. 3] EXEMPTIONS. § 35 
 
 stitution from taxation it is an essential feature that it be a 
 public charity, free from any element of private or corpo- 
 rate gain. When it is free from the latter element, and is 
 an institution devoted to charity by its act of incorpora- 
 tion, its character as such charity is not destroyed if, to 
 some extent, it receive a revenue from the recipients of 
 its bounty. 153 
 
 Under the statute of this state, 154 the tax is imposed only 
 on "estates * * * passing from any person who may 
 die seised or possessed of such estates." It is upon the state 
 to show, not only that the persons against whom it claims 
 taxes are not of the exempted class, but that the estate 
 passes from one who actually died seised or possessed of 
 the same. 155 
 
 In Pennsylvania, however, a college founded and main- 
 tained by donations, although taking a tuition fee, is a pub- 
 lic charity, and exempt by general law, but not from in- 
 heritance tax; 156 and in Virginia an orphan asylum ex- 
 empt under general law from taxation is liable to the in- 
 heritance tax. 157 
 
 The institution known as the Young Men's Christian As- 
 sociation is not a seminary of learning, or house of reli- 
 
 153 Philadelphia v. Women's Christian Ass'n (18S9) 125 Pa. St. 572, 
 17 Atl. 475. See Philadelphia v. Pennsylvania Hospital, 47 Leg. Int. 
 70. 
 
 154 Act Pa. May 6, 1SS7, Appendix, III. 
 
 155 in re Swann's Estate (Pa. Sup.; 1891) 23 Atl. 599. 
 
 ise Northampton Co. v. Lafayette College, 46 Leg. Int. 423. But 
 see Wagner Free Institute of Science v. City of Philadelphia (Pa. 
 Sup.) 11 Atl. 402, and 19 Atl. 297. That public charities are not ex- 
 empt from this tax in Pennsylvania, see "Current Comment and 
 Legal Miscellany" (Philadelphia) for March 15, 1891, p. 177, note re- 
 viewing cases, by John M. Gest, Esq. 
 
 157 Miller v. Com., 27 Grat. 110; Barringer v. Cowan, 2 Jones, Eq. 
 436; Com. v. Herman, 16 Wkly. Notes Cas. 210, 212. 
 
 (Ill)
 
 § 35 EXEMPTIONS. [Ch. 3 
 
 gious worship, and therefore not exempt from taxation. 158 
 A schoolhouse in the city of New York is not exempt, unless 
 it belongs to the public school system, or be exclusively 
 the property of an incorporated religious society. 159 But a 
 geographical society, the works of which are accessible at 
 all times to the public, is a public library, within the mean- 
 ing of the general law, and is exempt. 160 Under the Eng- 
 lish legacy acts, there is a provision exempting books, prints, 
 statues, coins, or works of art, bequeathed to certain insti- 
 tutions in trust, and where not to be sold. 161 The phrase 
 "public worship" refers to the usual church services upon 
 the Sabbath, open freely to the public, and in which any 
 one may join. 162 The word "person," under these acts, in- 
 cludes a bequest to a corporation, and it is consequently not 
 exempt. 163 
 
 (3) The following legacies to various charitable, religious, 
 and other institutions or persons have been declared not 
 exempt, where such institutions were not exempted by gen- 
 eral or special law: A bequest to a church, 164 to keep the 
 graves of testator's ancestors and family in order. 165 A 
 
 158 in re Vanderbilt's Estate, supra. 
 
 159 Church of St. Monica v. Mayor, etc., of New York, 119 N. Y. 91, 
 23 N. E. 294. 
 
 i6o People v. Commissioners of Taxes & Assessments of New York, 
 11 Hun, 505; In re Lenox's Estate (Surr.) 9 N. Y. Supp. 895; In re 
 Herr, 55 Hun, 167, 7 N. Y. Supp. 8.12. 
 
 lei 39 Geo. HI., c. 73, § 1. 
 
 162 Young Men's Christian Ass'n v. Mayor, etc., of New York, 113 
 N. Y. 187, 21 N. E. S6. See In re Van Kleeck's Estate, 55 Hun, 472, 
 8 N. Y. Supp. 806, reversed in 121 N. Y. 701, 25 N. E. 50. 
 
 163 Miller v. Com., 27 Grat. 117. 
 
 164 See Catlin v. Trustees, 113 N. Y. 133, 20 N. E. 864, affirming 49 
 Hun, 278, 1 N. Y. Supp. 808; In re Miller. 5 Dera. Sur. 13S; In re 
 Vassar, 127 N. Y. 8, 27 N. E. 394. But see Laws 1S90, c. 553; Laws 
 1892, c. 399, § 2. Appendix, I.; In re Van Kleeck's Estate, supra. 
 
 les in re Walters' Estate, 3 Pa. Co. Ct. R. 447; In re P.irkett, 9 Ch. 
 Div. 576; Hoare v. Osborne, L. R. 1 Eq. 585. 
 (112)
 
 Ch. 3] EXEMPTIONS. § 35 
 
 gift to a pastor, to say masses for the decedent. 166 Leg- 
 acies for fencing and keeping a cemetery in good order and 
 repair, and to a minister for preaching the gospel, are liable 
 to inheritance tax. 167 
 
 Xor is a specific bequest to executors, in trust to be used 
 for masses for the decedent and her husband, to be said 
 by a priest, exempt, not being made part of the funeral ex- 
 penses, 168 but, where part of such funeral expenses is for a 
 burial plot, it is exempt. 169 A legacy to be used for dress- 
 ing and caring for a cemetery lot and grave of testator is 
 not subject to tax. 170 But a legacy of an annuity to a 
 church, conditioned upon the ringing of the church bell for 
 an hour on a specified day in each year, is subject to tax. 171 
 
 And the tax is payable where the bequest for masses is 
 invalid in law, and goes to a religious corporation, which 
 is made residuary legatee under the will. 172 
 
 So a bequest to a mutual benefit assurance association, 
 which is not exempted under general or special law, is 
 liable. 173 
 
 But money paid by a beneficiary society to a deceased 
 
 16 6 Seibert's Appeal (Pa. Sup.) 6 Atl. 105; Rhymer's Appeal, 93 Pa. 
 St. 142; Stewart v. Green, Ir. R. 5 Eq. 470. 
 
 167 Hurst v. Cemetery Ass'n, note 170. 
 
 16 8 in re Black's Estate (Surr.) 5 N. Y. Supp. 452. As to the valid- 
 ity of such bequests, see Holland v. Alcock, 108 N. Y. 312, 16 N. E. 
 305; Power v. Cassidy, 79 N. Y. 602; Prichard v. Thompson, 95 N. 
 Y. 76. 
 
 169 In re Vinot's Estate (Suit.) 7 N. Y. Supp. 517. 
 
 170 Hurst v. Cemetery Ass'n (1SS3) 1 Lane. Law Rev. 60. 
 
 i7i In re Gilpin's Estate (1893) 14 Pa. Co. Ct. R. 122, 3 Pa. Dist. R. 
 711, 51 Leg. Int. 3S3. 
 
 172 in re Devlin's Estate, N. Y. Daily Reg. Oct. 15, 1SS9. 
 
 173 in re Jones' Estate (Surr.) 2 N. Y. Supp. 671. See, also, In re 
 Hunter, 11 N. Y. St. Rep. 700; Church Charity Foundation v. People, 
 6 Dem. Sur. 154; Attorney General v. Abdy, 1 Hurl. & C. 266. 
 
 LAW INHER. 8 (113)
 
 '§ 35 exemptions. [Ch. 3 
 
 member's next of kin, not being any part of decedent's es- 
 tate, is not within the act. 174 
 
 A policy of insurance upon the life of a decedent held 
 by him at the time of his death, payable to his executors, 
 administrators, and assigns, or to his personal representa- 
 tives, is "property," within the meaning of the collateral 
 inheritance act, 175 subject to appraisal for the purpose of 
 taxation. 176 
 
 The court said: "The burden of appellant's efforts seems 
 to be to establish that these policies were not property 
 of which the testator was seised and possessed at the time 
 of his death. But it must be admitted that they were ob- 
 ligations to pay money at a future date, and every instru- 
 ment, duly executed and having a lawful consideration, 
 which secures to the holder the payment of money at a speci- 
 fied date, confers upon him the right of property. The 
 statute has declared what shall be deemed assets of the 
 estate of a deceased person, and subject to distribution by 
 his executors, 177 and includes among them all choses in ac- 
 tion and every other species of personal property and ef- 
 fects. It is plain that these policies were assets of the es- 
 tate. The collateral inheritance law is very broad in its 
 provisions. All property which the decedent owned when 
 he died, and which has an appraisable value, is to be in- 
 cluded, subject, of course, to the payment of debts, and to 
 such exceptions as are specifically mentioned." 
 
 But in England the amount to be received under the rules 
 of a customs benevolent fund formed for the benefit of the 
 widows, children, relatives, and the nominees of the officers 
 
 i74Vogel's Estate, 1 Pa. Co. Ct. R. 352; Folmer's Appeal, 87 Pa. 
 St. 133. 
 
 175 Laws 1887, c. 713. 
 
 it g i n re Knoedler's Estate (1S93) 140 N. Y. 377, 35 N. E. 601, affirm- 
 ing 68 Hun, 150, 22 N. Y. Supp. 608. 
 
 1774 New York, Rev. St. (Sth Ed.) p. 2556 § 6. 
 (114)
 
 Ch. 3] EXEMPTIONS. § 36 
 
 of customs has been held not to be a legacy or taxable, on 
 the ground that the fund did not constitute part of the per- 
 sonal estate of the subscriber, and that it was not prop- 
 erty that he could dispose of as he should think fit. 178 
 
 § 36. Foreign Corporations and Governments. 
 
 The words "now exempted by law from taxation," as used 
 in the New York act of 1887, refer to exemptions under the 
 laws of the state imposing the tax; and the fact that a 
 foreign corporation, which is a beneficiary under the will 
 of a resident of the taxing state, is exempt from taxation 
 under the laws of the jurisdiction of the corporation's origin, 
 does not withdraw it from the operation of the inheritance 
 tax. 179 It seems that there is no comity which requires 
 that corporations existing under the laws of other states 
 should be placed under a more favorable position than do- 
 mestic corporations with respect to taxation. 180 
 
 Such foreign corporations are still liable in this state, 
 notwithstanding the provisions of recent statutes. 181 
 
 The general rule laid down by the courts under these 
 statutes is that, where the local law provides for the ex- 
 emption of corporations or associations from taxation, it 
 means to include domestic only, and not foreign, corpora- 
 ls i n re Rowsell, Tilsley (2d Ed.) 6S4, referred to in Attorney Gen- 
 eral v. Abdy, 1 Hurl. & O. 26G. 
 
 179 See, also, In re Tuigg's Estate (Surr.) 15 N. Y. Supp. 548. 
 
 isocatlin v. Trustees of Trinity College, 113 N. Y. 133, 20 N. E. 
 861, affirming 1 N. Y. Supp. SOS; People v. Coleman, 119 N. Y. 137. 
 23 N. E. 4SS; In re McCoskey's Estate, 1 N. Y. Supp. 7S2; In re 
 Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 239; In re Noyes' Estate, 
 N. Y. Law J. July 5, 1890; People v. McLean, SO N. Y. 254; Carpen- 
 ter v. Com., 17 How. 462; People v. Fire Association of Philadel- 
 phia, 92 N. Y. 311; In re Tuigg's Estate, supra. 
 
 i3i Laws 1S90, c. 553; Laws 1S92, c. 399, § 2; Laws 1892, c. 169; 
 Appendix, I. c; In re Richards, N. Y. Law J. Feb. 28, 1891. 
 
 (115)
 
 § 36 EXEMPTIONS. [Ch. 3 
 
 tions. The rule is definitely settled in New York that a 
 state statute granting powers and privileges to corpora- 
 tions, in the absence of plain indications to the contrary 
 appearing on the face of the act, applies only to corpora- 
 tions created by the state, and not to foreign corporations. 
 This applies to all foreign corporations, whether they be 
 charitable, religious, or otherwise. 182 
 
 The same rule is applied in Massachusetts. 183 The rule 
 is stated by Andrews, J., in Re Prime: 184 
 
 "We are of opinion that a statute of a state granting pow- 
 ers and privileges to corporations must, in the absence of 
 plain indications to the contrary, be held to apply only to 
 corporations created by the state, and over which it has 
 the power of visitation and control. Such is the natural 
 interpretation of such legislation, in the absence of a con- 
 trary intention appearing on the face of the act. 
 
 "The claim that the test of liability of foreign corpora- 
 tions to a legacy tax is the liability of a domestic corpora- 
 tion of the same character to the payment of such .a tax, 
 and that, if one is exempt, the other is exempt also, has, we 
 think, no foundation. In both cases the question is the 
 
 is2 code Civ. Proc. N. Y. § 3343, subd. 18; In re Prime, 136 N. Y. 
 356, 32 N. E. 1091, affirming 64 Hun, 50, 18 N. Y. Supp. 603, citing 
 Catlin v. Trustees of Trinity College, 113 N. Y. 133, 20 N. E. 864; 
 In re Balleis' Estate, 144 N. Y. 134, 38 N. E. 961, 1007, affirming 78 
 Hun, 275, 29 N. Y. Supp. 261; In re Merriam's Estate (1894) 141 N. 
 Y. 484, 36 N. E. 505, affirming 73 Hun, 587, 26 N. Y. Supp. 191; 
 In re Cullum (Suit.; 1893) 25 N. Y. Supp. 701, affirmed 76 Hun, 610, 
 
 27 N. Y. Supp. 1105; In re Taylor's Estate, 80 Hun, 589, 30 N. Y. Supp. 
 582; In re Smith's Estate, 77 Hun, 134, 2S N. Y. Supp. 476; In re 
 Tuigg's Estate (Suit.) 15 N. Y. Supp. 548; In re Fayerweather (Suit.) 
 30 N. Y. Supp. 273; In re James' Estate (1894) 27 N. Y. Supp. 288, 
 
 28 N. Y. Supp. 351; Id., 144 N. Y. 6, 38 N. E. 961; People v. Cole- 
 man, 135 N. Y. 231, 31 N. E. 1022; In re Balleis (1S94) 144 N. Y. 134„ 
 38 N. E. 1007. 
 
 183 Minot v. Winthrop (1894) 162 Mass. 110, 38 N. E. 512. 
 is4 supra. 
 (116)
 
 Ch. 3] EXEMPTIONS. § 36 
 
 same, — has the statute made the legacy taxable? In the 
 Catlin Case exemption of both the domestic and foreign 
 corporations was claimed under the Revised Statutes alone. 
 If they did not exempt the domestic corporation, concededly 
 they did not exempt the foreign one; and, for convenience 
 in deciding the case, both were regarded as domestic cor- 
 porations. 
 
 "It is the policy of society to encourage benevolence and 
 charity. But it is not the proper function of a state to 
 go outside its own limits, and devote its resources to sup- 
 port the cause of religion, education, or missions for the 
 benefit of mankind at large. The argument may have force 
 that the state might, consistently with its proper functions, 
 give immunity from taxation to some of the foreign corpora- 
 tions engaged in the work of education or charity. But, 
 however this may be, we are convinced that the statute of 
 1891 185 has no application to foreign corporations, and, 
 having reached that conclusion, our duty is ended." 186 
 
 In proceeding to confer the privilege of an exemption 
 from its provisions, in the case of any religious corpora- 
 tions, the legislature must be deemed to have in mind those 
 corporations which were the creation of the state, and not 
 those in which it had no interest, and over which it had 
 no control. 187 The act of 1892 was legislating with respect 
 to subjects within the jurisdiction of the state; and the 
 provision modifying the legislation, as it affected certain 
 corporations, must be considered in the light of an exercise 
 of the sovereign power within territorial limits. In creat- 
 ing this particular plan for the taxation of all property 
 transferred to others upon, or in contemplation of, the death 
 of its owner, the declaration of an exemption in favor of 
 religious corporations, even though it might already exist 
 
 las Chapter 215. 
 
 186 in re Prime (1893) 136 N. Y. 362, 32 N. E. 1091. 
 
 is? in re Balleis' Estate (1894) 144 N. Y. 134, 38 N. E. 1007. 
 
 (117)
 
 § 3(5 EXEMPTIONS. [Ch. 3 
 
 under previous legislation, was a wise, if superfluous, pro- 
 vision. To say that it was intended to include foreign 
 religious corporations, would be to imply the grant of a 
 privilege by the legislature, without sufficient indications 
 of an intention so contrary to ordinary state policy and to 
 usual statutory presumptions. This we should not do. 
 The legislation in question dealt with property within the 
 state, and imposed a tax, in certain cases, upon its transfer 
 to others, or to corporations. 
 
 The exemption of "charitable, educational, or religious 
 societies or institutions, the property of which is exempt 
 by law from taxation," from the operation of the law, is 
 confined to societies the property of which is exempt from 
 taxation by the laws of Massachusetts. 188 Such foreign 
 corporations are not exempted under the act of 1S90, 189 
 exempting the personal estate of "any religious, educational, 
 Bible," and other societies from taxation. 190 They are not 
 exempt from taxation under the act of 1892. 191 
 
 So a statute 192 conferring upon a foreign corporation 193 
 a limited privilege of taking and holding real estate and 
 personal property in New York does not relieve it from 
 taxation under these acts. 194 
 
 So the United States government is not exempted from 
 taxation under the inheritance tax as a domestic corpora- 
 
 188 Minot v. Winthrop (1894) 162 Mass. 113, 38 N. E. 512, citing 
 In re Prime, 136 N. Y. 347, 32 N. E. 1091; Oatlin v. Trustees of 
 Trinity College, 113 N. T. 137, 20 N. E. 864; Healy v. Reed, 153 Mass. 
 197, 26 N. E. 404. 
 
 189 Chapter 553, amending chapter 191, Laws 1SS9. 
 
 190 in re Prime, supra. 
 
 i9i Chapter 399, § 2; In re Balleis, supra; In re Fayer weather, 
 supra; In re Taylor, supra; In re Smith's Estate, supra. 
 
 192 Laws 1889, c. 307. 
 
 193 I. e. the American Board of Commissioners for Foreign Mis- 
 sions. 
 
 194 In re Prime, supra. 
 (118)
 
 Ch. 3] EXEMPTIONS. § 36 
 
 tion. It is to be regarded as a foreign corporation, and a 
 tax imposed upon a legacy to it is not upon the property 
 of the United States, but the privilege of succession accord- 
 ed to it by the laws of the state. 195 
 
 The United States, as a body politic or corporate, being 
 authorized and permitted by the law of the state to take 
 personal property by will, takes cum onere, subject to all 
 burdens and conditions imposed by law. 196 
 
 "This tax, in effect, limits the power of testamentary dis- 
 position, and legatees and devisees take their bequests 
 and devises subject to this tax imposed upon the succession 
 to property. This view eliminates from the case the point 
 urged by the appellant, — that to collect this tax would be 
 in violation of the well-established rule that the state can- 
 not tax the property of the United States. Assuming this 
 legacy vested in the United States at the moment of tes- 
 tator's death, yet, in contemplation of law, the tax was 
 fixed on the succession at the same instant of time. This 
 is not a tax imposed by the state on the property of the 
 United States. The property that vests in the United 
 States under this will is the net amount of its legacy after 
 the succession tax is paid. 197 So, under this rule, it is re- 
 cently held that a legacy to a municipal corporation, to wit, 
 the mayor, aldermen, and commonalty of the city of New 
 York, for the purpose of erecting a fountain is liable to the 
 transfer tax, and the city is not exempt by the state constitu- 
 tion or any statute law.* 
 
 195 in re Merriam (1S94) supra, citing Code Civ. Proc. N. Y. § 3343, 
 subd. IS; In re Cullum's Estate (Surr.; 1S93) 25 N. Y. Supp. 701, 
 affirmed 76 Hun, 610, 29 N. Y. Supp. 1142. 
 
 19 6 in re Fox, 52 N. Y. 530, affirmed 94 U. S. 315; In re Merriam, 
 supra; Van Brocklin v. Tennessee, 117 U. S. 154, 6 Sup. Ct. 670; 
 U. S. v. HiUegas, 3 Wash. C. C. 70, Fed. Cas. No. 15,366. 
 
 197 Bartlett, J., in Re Merriam, supra. 
 v * In re Hamilton's Estate, 13 N. Y. Law J. 13S4. 
 
 (119) i
 
 § 37 EXEMPTIONS. [Ch. 3 
 
 § 37. Adopted Children — Mutually Acknowledged 
 
 Relation of Parent and Illegitimate 
 
 Children, etc. 
 
 The laws of New York and Connecticut and most other 
 States relieve adopted children from the collateral inherit- 
 ance tax; and in New York, by act of 1887, those persons 
 to whom the deceased, for not less than 10 years prior to 
 his death, stood in the mutually acknowledged relation of 
 a parent, are excepted; and the law of Connecticut exempts 
 the lineal descendants of such adopted children. By the 
 New York statute of 1892, 198 when the property passes to 
 "any child or children adopted as such in conformity with 
 the laws of this state, of the decedent, grantor, donor, or 
 vendor, or to any person to whom any such decedent, etc., 
 for nor less than 10 years prior to such transfer, stood in 
 the mutually acknowledged relation of a parent," it is not 
 taxable unless it is personalty of the value of $10,000 or 
 more, when it is taxable at 1 per cent. 199 
 
 Under this subject we will consider — First, the cases that 
 have arisen respecting adopted children; second, such as 
 come within the class of persons standing in the mutually 
 acknowledged relation of parent to the legatee or devisee; 
 and, third, such as concern illegitimate children. 
 
 The word "children," in these acts, does not include adopt- 
 ed children, but merely relates to such as are children in 
 fact of decedent, and born in lawful wedlock. Such adopt- 
 ed children are therefore liable to the tax, 200 where not 
 expressly exempted. 
 
 19 8 Laws N. Y. 1S92, c. 399, § 2. 
 
 199 See the words "mutually acknowledged relation" discussed, in 
 Re Hunt's Estate, 86 Hun, 232, 33 N. Y. Supp. 256; contra, In re 
 Stillwell's Estate (Surr.) 34 N. Y. Supp. 1123. 
 
 200 in re Miller's Estate, 110 N. Y. 216, 18 N. E. 139, affirming 47 
 (120)
 
 <Jh. o] EXEMPTIONS. § 37 
 
 In New York, owing to the passage of the amendatory 
 act of 1887, relieving adopted children, the law became 
 somewhat involved as to those adopted children who were 
 liable under the previous act of 1885 ; but it has been held 
 that as the former act did not repeal the latter, bat was 
 simply amendatory thereof, and not retroactive, only be- 
 quests to the adopted children of decedent dying after the 
 act of 18S7 went into effect were relieved from the tax, upon 
 the theory that the new or changed parts of the latter act 
 were not to be considered law at any time prior to the date 
 of its passage; 201 hence the vested rights of the state, ac- 
 cruing under the act of 1885, as to such adopted children, 
 liable under the latter act, still continued, notwithstanding 
 the proceeding against them to collect the tax was not be- 
 gun until after the act of 1887 went into effect. 202 
 
 Finally, by further amendatory statute, 203 such adopted 
 children and those persons to whom deceased stood in the 
 mutual relation of parent, and against whom no assessment 
 
 Hun, 394; Id. 6 Dem. Sur. 119; Com. v. Nancrede, 32 Pa. St. 3S9; 
 Tharp v. Com., 58 Pa. St. 500; Packard's Appeal, 37 Leg. Int. 135; 
 Com. v. Ferguson, 137 Pa. St. 595, 20 Atl. 870; Gilmore's Estate, 14 
 Pittsb. Leg. J. 113. 
 
 201 In re Miller, 110 N. Y. 216, 18 N. E. 139, citing Ely v. Holton, 
 15 N. Y. 595. See, also, In re Kemeys, 5G Hun, 117, 9 N. Y. Supp. 
 182. But see Fox v. Com., 16 Grat. 1. 
 
 202 i n re Arnett, 49 Hun, 599, 2 N. Y. Supp. 428; In re Ryan (Surr.) 
 3 N. Y. Supp. 136; In re Cager's Will, 111 N. Y. 346, 18 N. E. 866; 
 In re Thompson, sub nom. Warrinier v. People, 6 Dem. Sur. 211; 
 Kissam v. People (Surr.) 3 N. Y. Supp. 135; In re Miller, 6 Dem. 
 Sur. 119; In re Hendricks' Estate (Surr.) 3 N. Y. Supp. 2S1; In re 
 Brooks, 6 Dem. Sur. 165; In re Kemeys, supra. See In re Howe, 
 112 N. Y. 102, 19 N. E. 513, affirming 48 Hun, 236. 
 
 203 Laws 1889, c. 479. See Appendix, I. This law took effect 
 when signed by the governor, June 14, 1SS9, and not when it was 
 passed by the legislature. In re Kemeys, supra. Where the as- 
 sessment under the prior law was made after the passage of the 
 act relieving adopted children, or those standing in the mutually 
 
 (121)
 
 § 37 EXEMPTIONS. [Ch. 3 
 
 of the tax had been made, were "retroactively exempted" 
 from the tax to which they were liable under the act of 
 1885, where no assessment of the tax had been made at the 
 time of the passage of the amendatory act; 204 and thus, 
 it would seem, all adopted children were relieved under 
 these acts. By the act of 1892, 205 however, such adopted 
 children are now taxed 1 per cent, upon all personalty of 
 the value of $10,000, or more. 
 
 It was considered that, unless the adoption be in con- 
 formity with the laws of the state, 206 the legacy to the 
 adopted child is liable; but it is now held under the act of 
 1887 that an adoption under the lawsi of Massachusetts, the 
 statute of that state being similar to that of New York, is 
 sufficient to relieve such adopted child from the tax under 
 the laws of the latter state, 207 and the mere use of the words 
 "my adopted child" in the will is insufficient. 208 
 
 acknowledged relation, they are not liable. In re Thomas, 3 Misc. 
 Rep. 388, 24 N. Y. Supp. 713, distinguishing In re Kerneys, supra; 
 In re Fenn (Dec. 28, 1894) 12 N. Y. Law J. 784. 
 
 204 i n re Hughes, N. Y. Daily Reg. July 27, 18S9; In re Thome's 
 Estate (Jan. 21, 1S90) 2 N. Y. Law J. 1974; In re Kerneys, supra. This 
 does not, however, include the children of such adopted children. 
 In re Bird's Estate (Surr.) 11 N. Y. Supp. 895. 
 
 205 Chapter 399, § 2. 
 
 206 Laws N. Y. 1873, c. S30. And see this question discussed 
 by Kennedy, S., in Re Spencer (Surr.) 4 N. Y. Supp. 395. But see 
 In re Butler, 58 Hun, 400, 12 N. Y. Supp. 201. 
 
 207 in re Butler, supra, the court said: "This statute does not re- 
 quire the proceedings for adoption to be under the laws of this state, 
 but to be in conformity with them, and to correspond in character 
 and manner with them, wherever they are conducted, and an ex- 
 amination of the proceedings in Boston for the adoption of this child 
 shows that they conform substantially to the requirements of our 
 statute. There is no reason for a severe construction of this statute. 
 The boy was legally adopted under laws substantially similar to our 
 
 208 in re Gardner's Estate, N. Y. Daily Reg. March 4, 1S89. 
 (122)
 
 Ch. 3] EXEMPTIONS. § 37 
 
 So, it seems, an act of the legislature giving an adopted 
 child the right to inherit does not relieve him from the 
 tax; 209 and where an adopted child possessing a personal 
 estate dies unmarried and intestate, leaving a parent by 
 nature surviving, the latter is the heir, to the exclusion of 
 the adopted parents, and is exempt. 210 
 
 Second. In order to constitute the relation of a person 
 standing in the "mutually acknowledged relation" of parent 
 under the New York statute, 211 some time during the con- 
 tinuance of the intercourse between the persons between 
 whom the relation is claimed to exist, there should be a 
 period of dependence on the part of the younger, — a time 
 when the latter required and received parental care, though 
 not necessarily a dependence for support and maintenance. 
 The relation must therefore begin in youth, though not of 
 necessity during legal minority; and it should not be con- 
 founded with relations in which the parental element is 
 lacking. A step-parent does not necessarily stand in the 
 relation of parent, within the meaning of the act. Wheth- 
 er the parties do or not depends upon the circumstances 
 of each case. 212 And while it is necessary that adoption 
 
 own, so far as the mode of procedure is concerned, and that is suffi- 
 cient to answer the requirements of this law." This is a liberal 
 construction of the act of 1SS7, because the language of the act is 
 express that the adoption should be "in conformity with the laws 
 of the state of New York." 
 
 209 com. v. Nancrede, 32 Pa. St. 3S9; Wayne's Estate, 2 Pa. Co. 
 Ct. R. 93; Tharp v. Com., 5S Pa. St. 500; Packard's Appeal, 37 Leg. 
 Int. 135. 
 
 210 Com. v. Powell, 1 Montg. (9 Penn.) 66; 16 Wkly. Notes Cas. 
 297. 
 
 2ii Acts 1S87 and 1S92, Appendix, I. See the words "mutually 
 acknowledged" defined in Re Hunt's Estate (1S95) 86 Hun, 232, 33 N. 
 Y. Supp. 256; In re Moulton's Estate (1895) 11 Misc. Rep. 694, 33 
 N. Y. Supp. 578. 
 
 212 in re Capron's Estate (Surr.) 10 N. Y. Supp. 23. 
 
 (123)
 
 § 37 EXEMPTIONS. [Ch. 3 
 
 should be in strict conformity to law, in order to bring the 
 devisee or legatee within the clause exempting persons to 
 whom the deceased, for not less than 10 years prior to his or 
 her death, stood in the mutually acknowledged relation of a 
 parent, it seems it is not necessary that there should be 
 any express agreement between the parties; but the rela- 
 tion may be shown to exist by facts and circumstances tend- 
 ing to disclose it. Hence, where all the relations between 
 the parties — an aunt and a niece — were parental in their 
 intent, character, and results, acts and conduct are of them- 
 selves evidence by which a parental relation may be estab- 
 lished, and the absence of the use of the words "mother and 
 child" do not affect the result intended by both parties. 213 
 Where decedent and the legatees were not related, nor had 
 ever been legally adopted by decedent, but began residing 
 with decedent early in infancy, having no home of their own 
 and no means of support, and were maintained and edu- 
 cated by decedent, assumed her name, called her "mother," 
 and she exercised the same parental care over, and mani- 
 fested the same affection for, each of them as if they had 
 in fact been her own children, held sufficient to constitute 
 the mutually acknowledged relation of parent and child 
 under the statute, 214 and that the legacies to such children 
 were exempt. 215 
 
 To prove that decedent and a child stood in the mutually 
 acknowledged relation of parent and child for 10 years, no 
 evidence of formal adoption is required; mutual acknowl- 
 edgment is enough, and this may be proved by the facts 
 and circumstances. 216 
 
 213 in re Spencer (Surr.) 4 N. Y. Supp. 395; In re Capron's Estate, 
 supra; In re Butler, 58 Hun, 400, 12 N. Y. Supp. 201. 
 
 214 Laws 1887, c. 713. 
 
 sis in re Thomas (1893) 3 Misc. Rep. 388, 24 N. Y. Supp. 713. 
 216 in re Butler, 58 Hun, 400, 12 N. Y. Supp. 201; In re Spencer 
 <Surr.) 4 N. Y. Supp. 395. 
 (124)
 
 Ch. 3] EXEMPTIONS. § 37 
 
 And where decedent lived in the family of G., her de- 
 ceased sister's husband, as housekeeper, on land of which 
 she and her sister's adult children were tenants in common, 
 held facts showing that the relation of parent and child be- 
 tween decedent and said children existed during the life of 
 G., their father. 217 
 
 Where the facts show that the relation of parent and 
 child existed for a less period than 10 years prior to de- 
 cedent's death, there can be no exemption from taxation on 
 the ground of a mutually acknowledged relation of parent 
 and child. 218 
 
 An annuity bequeathed to a legatee whom, for over 40 
 years, testator treated in every particular the same as he 
 did his own daughters, and for whose comfort and welfare 
 he showed the same solicitude as for the latter, is exempt 
 from taxation under the statute 219 providing that transfers 
 of property "to any person to whom any such decedent, 
 grantor, * * * for not less than ten years prior to such 
 transfer, stood in the mutually acknowledged relation of a 
 parent," notwithstanding the legatee was not related to, 
 and was never adopted by, the testator, and though merely 
 referred to in his will as "our friend." 220 
 
 Testator did not stand in the mutually acknowledged 
 relation of parent to a legatee, so as to exempt the legacy 
 from taxation, where he did not support or educate her, 
 and she was not in any way dependent on him, but he mere- 
 ly lived in the family of his sister, who was legatee's mother, 
 
 217 in re Sweetland's Estate (1S92; Surr.) 20 N. Y. Supp. 310, dis- 
 tinguishing In re Spencer, supra. 
 
 218 in re Sweetland's Estate, supra; In re Gardner's Estate, N. Y. 
 Daily Reg. March 4, 18S9. 
 
 2i9 Laws 1892, c. 399, § 2. 
 
 220 in re Wheeler's Estate (1S92) 1 Misc. Rep. 450, 22 N. Y. Supp. 
 1075. 
 
 (125)
 
 § 37 EXEMPTIONS. [Ch. 3 
 
 and contributed to the support of the family in common 
 with the other members thereof, including the legatee. 221 
 
 The court said: "The purpose and intent of that part of 
 section 2 of the transfer act which exempts property which 
 passes to one who, for not less than 10 years prior to the 
 transfer, stood in the mutually acknowledged relation of 
 a child, was to include among those exempted persons, who 
 may not have been legally adopted, but, nevertheless, stood 
 in the same relation as children, and were acknowledged 
 and recognized as such. The word 'acknowledge' would 
 seem to indicate that it was necessary that the deceased 
 person had held the person to whom the transfer was made 
 out to the world as a child, or as one to whom he bore that 
 relation, or that he treated and considered such a one as a 
 child; and the word 'mutually' would seem to require that 
 such a relation was mutual, and that the character of the 
 relation was reciprocal. However close the relations may 
 have been, and however affectionate each may have been 
 for the other, still the case would not come within the 
 meaning of the statute, unless the relation was generally 
 understood and acknowledged to be that of parent and 
 child. * * * In the various cases decided in which it 
 has been held that transfers \rere exempt because the mu- 
 tually acknowledged relation of parent and child existed, 
 the children were taken into the family of the deceased, 
 and were made members of the family, and lived and grew 
 up as members of the family, and were recognized and con- 
 sidered as such." 
 
 The mutually acknowledged relation of parent and child 
 under the New York statute of 1892 is not made out where 
 the facts showed that the legatee was a niece of the de- 
 cedent, and had lived in his household for over 10 years; 
 that he called her "daughter'" many times, but she never 
 
 221 in re Moulton's Estate (1895; Suit.) 33 N. Y. Supp. 578. 
 (12G)
 
 Ch. 3] EXEMPTIONS. § '37 
 
 culled him "father," always addressing him as "uncle." 1 It- 
 supported her, and gave her a stipulated sum besides, but 
 always introduced her as his niece; never as his daughter. 
 At the time she went to live with him, he exacted a prom- 
 ise from her that she would never leave him, and she never 
 did leave him, for a week at a time. For nine years she 
 was never away from him for a night. She had charge of 
 his household, though for many years preceding his death 
 he lived at an hotel. When talking with her about his 
 will, he said the greater part of his estate was due to his 
 brother, to whom he was very grateful for having saved 
 him from bankruptcy at a critical period of his business 
 career, but that he intended to care for her the same as he 
 did for his brother's children. Held, that the relation was 
 not made out. 222 
 
 But what would seem to be a wide departure from the 
 construction adopted by the earlier cases upon this subject 
 was held by the supreme court in Re Hunt, 223 on appeal 
 from the surrogate. A construction was placed upon the 
 language of the act which substantially restricts the mu- 
 tually acknowledged relation of parent only to illegitimate 
 children of the person from whom the property was derived. 
 In the Hunt Case the person claiming the relation was a 
 niece of decedent. 
 
 Van Brunt, P. J., said: "It seems to us, however, that an 
 examination of the act clearly shows what the mutual ac- 
 knowledgment of the relationship referred to in the act is 
 
 222 i n re Hunt, N. Y. Law J. Dec. 11, 1894, affirmed 86 Hun, 232, 
 33 N. Y. Supp. 256, citing In re Butler, 58 Hun, 403, 12 N. Y. Supp. 
 201; Weston v. Goodrich, 86 Hun, 194, 33 N. Y. Supp. 382; In re 
 Spencer (Suit.) 4 N. Y. Supp. 395; In re Wheeler's Estate (Suit.) 
 22 N. Y. Supp. 1075. 
 
 223 in re Hunt (Suit.) 33 N. Y. Supp. 256, followed in Re Conklin 
 (May 21, 1895) 13 N. Y. Law J. 514, Fitzgerald, S. The Hunt Case 
 has recently been dissented from, distinguished, and criticised, in Re 
 Sthlwell's Estate (Suit.) 34 N. Y. Supp. 1123. 
 
 (127)
 
 § 37 EXEMPTIONS. [Ch. 8- 
 
 intended to cover: First is mentioned the legitimate child, 
 next is mentioned the adopted child, and next, we think, 
 is intended to be mentioned the illegitimate child who has 
 been for 10 years acknowledged as the testator's child, and 
 such acknowledgment has been mutual. That the question 
 of legitimacy was in the mind of the framers of the statute 
 is manifest from the next clause of the section in question. 
 It says : 'Or to any lineal descendant of such decedent, gran- 
 tor, donor, or vendor born in lawful wedlock,' — thereby ex- 
 cluding from lineal descendants any other person excepting 
 those descending from the legitimate child. It is signifi- 
 cant that the words 'lawful wedlock' are used in respect to 
 this matter of lineal descendants immediately after the mu- 
 tual acknowledgment, and that it had not been at all con- 
 sidered necessary to refer to it when a child or children 
 were spoken of in the previous part of the section. It is evi- 
 dent that it was intended to limit the exemption of illegit- 
 imate descendants to the child, and not to extend the same 
 to the descendants of such children. * - * * All that the 
 clause in question seems to have been intended to cover was 
 the case where an illegitimate child had been recognized 
 by its parents, and such recognition was mutual, and had 
 continued for ten years. In such a case it was intended 
 that the legatee should have the benefit of the statute. We 
 cannot imagine how it could have been the intent of the 
 legislature to have made it possible to acknowledge or rec- 
 ognize a relationship which had no foundation in fact. 
 * * * So, in the statute, the parent acknowledges his 
 illegitimate child, and the child acknowledges his parent, 
 and the mutual acknowledgment provided for by the statute 
 takes place." 
 
 There are several objections to this construction as being 
 too narrow and restricted in its application: 
 
 (1) That part of the language of the act relating to the 
 subject is as follows: "When the property * * * passes 
 (128)
 
 Ch. 3] EXEMPTIONS. § 37 
 
 * * * to or for the use of any father," etc., "or to any 
 person to whom any such decedent, grantor, donor, or ven- 
 dor for not less than ten years prior to such transfer stood 
 in the mutually acknowledged relation of a parent, or to 
 any descendant of such decedent * * * born in law- 
 ful wedlock." The words "any person" would seem to be 
 comprehensive enough to include other persons than illegiti- 
 mates, but to hold that they include only illegitimate chil- 
 dren is to exclude every other person from relief under this 
 clause of the statute. 
 
 (2) This construction, in its results, not ony conflicts with 
 that arrived at by the cases decided under the act of 1887, 
 but also with cases decided under the act of 1892. The pre- 
 cise language of the act of 1887 is embodied in the act of 
 1892. Under the former act the relationship was applied 
 indiscriminately to all persons (the statute says "any per- 
 son"), irrespective of the fact as to whether they were con- 
 nected by blood with decedent or not. Nieces were held 
 to be within the statute where the relation was made out.* 
 
 So persons, strangers in blood to decedent, were held with- 
 in the statute in several cases. 224 
 
 There is nothing in the act of 1892 which shows that the 
 legislature intended to make any change in the law as it 
 stood in 1887, except to impose a tax of 1 per cent, upon the 
 persons enumerated therein. If In re Hunt is correctly 
 decided at the general term, 225 then all the cases decided 
 under the acts of 1887 and 1892 are erroneous. The case 
 has recently been criticized and dissented from in an able 
 opinion by Keeler, S.f 
 
 * In re Capron and In re Spencer, supra. 
 
 224 in re Thomas, supra; In re Sweetland's Estate, supra; In re 
 Wheeler's Estate, supra. 
 
 225 it was followed by Fitzgerald, S., in Re Conklin, supra. 
 
 t In re Stillwell's Estate (Surr.) 34 N. Y. Supp. 1123, citing In re 
 LAW INHER. 9 (129)
 
 § 37 kxicmttions. [Ch. 3 
 
 Where the testator died prior to the act of 1887 (chapter 
 713), providing for the exemption of children where deced- 
 ent stood in the mutually acknowledged relation of parent, 
 the legatees are not entitled to exemption upon this ground 
 under the statute. 226 
 
 Third. But the interest of an illegitimate child is taxa- 
 ble; 227 and where an illegitimate son was legitimated by 
 act of legislature, approved a day after the intestate's death, 
 it was held that the tax, having already vested, was not 
 affected by the act. 228 The intention of the legislature 
 must be clearly expressed in order to relieve such children. 
 Hence no inference that the legislature intended to relieve 
 illegitimate children from the tax will be drawn from the 
 mere fact of legitimation. 229 
 
 An illegitimate child, however, legitimated by act of as- 
 sembly, with all the rights and privileges of a child born 
 in lawful wedlock, is exempt. 230 An illegitimate son adopt- 
 ed by decedent, pursuant to an act of the legislature which 
 authorized him to inherit decedent's estate and property as 
 fully as if he had been begotten in lawful wedlock, is 'not 
 thereby legitimated, and a devise to him by decedent is sub- 
 ject to taxation. Whether, if the act had legitimated the 
 
 Butler, 58 Hun, 400, 12 N. Y. Supp. 201; In re Spencer's Estate 
 <Surr.) 4 N. Y. Supp. 395. 
 
 226 i n re Fenn, N. Y. Law J. Dec. 28, 1894. 
 
 227 i n re Wharton's Estate, 10 Wkly. Notes Cas. 105. And see In re 
 Miller, 110 N. Y. 221, 18 N. E. 139; Com. v. Ferguson, 137 Pa. St. 
 395, 20 Atl. 870. For a review of legislation upon the subject of ille- 
 gitimates in Pennsylvania, see In re Kennedy's Estate, 27 Wkly. 
 Notes Cas. 254. 
 
 228 Galbraith v. Com., 14 Pa. St. 258; Wayne's Estate, 2 Pa. Co. 
 Ct. R. 93; Com. v. Stump, 53 Pa. St. 132. But see Tharp v. Com., 
 58 Pa. St. 500. 
 
 229 Physick,'s Estate, 2 Brewst. 200. 
 
 230 Gilmoi-e's Estate, 14 Pittsb. Leg. J. 113; distinguishing Com. v. 
 Nancrede. 32 Pa. St. 3S9, and cases supra. 
 
 (130)
 
 Ch. 3] EXEMPTIONS. § 38 
 
 son, the tax would have been payable, was not decided. 281 
 Under the English legacy act, illegitimate children subse- 
 quently legitimated by marriage of their parents are not 
 within the term "strangers to the blood," but inherit as chil- 
 dren, and hence pay the lower grade of duty. 232 But 
 where the children were illegitimate, not born in lawful 
 wedlock, nor acquiring the status of legitimacy by the sub- 
 sequent marriage of their parents, they were held to be 
 strangers in blood, and liable to duty at 10 per cent. 233 
 
 § 38. Widows, and Husbands of Deceased 
 Daughters. 234 
 
 In some of the states the wife or widow of a son, or the 
 husband of a daughter, 235 are exempted, and also the widow 
 of the decedent. 
 
 Where the widow of decedent is provided for in the will, 
 but refuses to take thereunder, and elects to claim her dow- 
 er in the estate, which is set aside, such dower is not subject 
 to the tax, notwithstanding the fact that by agreement she 
 takes less than the law would have allowed; 236 but where 
 the legatee married decedent's son, but such son had died, 
 and the legatee had subsequently married before decedent's 
 death, she does not come within the term "widow," and the 
 legacy to her is not therefore exempt. 237 The court said:* 
 
 23i Com. v. Ferguson (1S90) 137 Pa. St. 595, 20 Atl. 870; following 
 Com. v. Nancrede, 32 Pa. St. 389. See In re Gilmore's Estate, 14 
 Pittsb. Leg. J. 113. 
 
 232 Skottowe v. Young, L. R. 11 Eq. 474. 
 
 233 Atkinson v. Anderson, 21 Ch. Div. 100. 
 
 234 see In re Woolsey, 19 Abb. N. C. 232, note. 
 
 235 See statutes of New York, Pennsylvania, Connecticut, and 
 Maryland, Appendix, I., III., VII., VIII. 
 
 236 Appeal of Commonwealth, 34 Pa. St. 204. 
 
 237 com. v. Powell, 51 Pa. St. 438. 
 • Page 441. 
 
 (131)
 
 § 39 EXEMPTIONS. [Ch. 3 
 
 "The testatrix did not die until after the second marriage 
 of the devisee, and the property does not vest in and pass 
 to her until testatrix's death. At that time she was not 
 within the class of exempts, and not entitled to take the 
 property clear of the tax." 
 
 On the other hand, it has been held that the exemption 
 from taxation of a devise or a bequest in favor of the hus- 
 band of a daughter is unaffected by the circumstance of 
 the death of the daughter occurring before that of the tes- 
 tator, her parent, as the word "daughter" would seem to 
 include a deceased daughter. 238 
 
 § 39. Next of Kin — Lineal and Lawful 
 Descendants. 
 
 By all the state statutes, persons embraced within these 
 terms are generally exempted. In New York, Ohio, and 
 Illinois, however, lineal heirs are now taxed. 239 The term 
 "lawful or lineal descendants" includes only the direct de- 
 scendants of the testator or intestate, and does not include 
 the children of the brothers and sisters of the decedent. 240 
 The lineal descendants exempted from the tax under the 
 New Jersey statute are those of the deceased person only. 241 
 
 The share of a grandmother was held taxable in Penn- 
 sylvania under the act of 1833, exempting father, mother, 
 husband, wife, children, and lineal descendants, there being 
 no nearer kindred of the intestate than such grandmother; 
 it being held that the next of kin under the act should be 
 
 238 in re McGarvey, 6 Dem. Sur. 145; In re Woolsey, 19 Abb. N. 
 C. 233, note. 
 
 239 statutes of New York and Ohio, Appendix, L, VI. 
 
 240 in re Miller, 5 Dem. Sur. 132, affirmed 45 Hun, 244; In re Smith, 
 5 Dem. Sur. 90; In re Jones, id. 30. See In re Hunt's Estate (Sup.) 
 33 N. Y. Supp. 256. 
 
 24i Van Riper v. Happenheimer, 17 N. Y. Law J. (Feb. 1894) p. 49. 
 
 (132)
 
 Ch. 3] EXEMPTIONS. § 40 
 
 ascertained by rule of the civil, and not of the canon, law. 243 
 But property devised to testator's daughter, in trust, for 
 life, with power of appointment by will 243 in the life tenant, 
 which the daughter by will devised to her brothers and sis- 
 ters and their children, being lineal descendants of her 
 father, is not liable. 244 
 
 And property bequeathed to an executor individually, 
 but which, by agreement between him and the testatrix, 
 was to be in trust for her brother, is exempt. 246 
 
 § 40. Aliens, Foreign Legatees, and Nonres- 
 idents. 
 
 This subject has already been considered as to the con- 
 stitutional questions involved, 246 and elsewhere with refer- 
 ence to questions of domicile and situs. 247 Under the stat- 
 utes no tax is generally imposed on aliens as such save in 
 Louisiana, where, however, the tax is only due by such alien 
 heirs as become entitled to succession open in the state 
 after the passage of the law. 248 
 
 But while the law of that state imposes the tax upon 
 
 242 McDowell v. Addoms, 45 Pa. St. 430. And see rules relative to 
 collateral and lineal consanguinity under these acts discussed per 
 Woodward, C. J. 
 
 243 See chapter 6, § 60. 
 
 244 Com. v. Williams, 13 Pa. St. 29; Com. v. Sharpless, 2 Chest. 
 Co. R. (Pa.) 246; Com. v. Schumacher, 9 Lane. Bar (Pa.) 199; Hackett 
 V. Com., 102 Pa. St. 505. 
 
 245 in re Farley, 15 N. Y. St. Rep. 727. Contra, Cullen v. Attorney 
 General, L. R. 1 H. L. 890. As to death by drowning, mother and 
 children, presumption of survivorship, collateral inheritance tax, see 
 Clymer's Estate (18S5) 16 Wkly. Notes Cas. 36. 
 
 246 Chapter 2, § 26. 
 
 247 Chapter 4. 
 
 2i8 Succession of Oyon, 6 Rob. (La.) 504; Succession of Deyraud, 9 
 Rob. (La.) 357. 
 
 (133)
 
 § 41 EXEMPTIONS. [Ch. 3 
 
 nonresident aliens and alien heirs and citizens residing 
 abroad, nonresident heirs who are citizens of any other 
 state of the United States are exempt. 249 
 
 Under these statutes it has been held that the word "es- 
 tate" is synonymous with the word "successor." 
 
 250 
 
 § 41. What Estates or Interests Taxable— Amounts 
 
 Limited. 
 
 Many, if not all, of these statutes, exempt small legacies 
 or estates from taxation, generally ranging from $250 to 
 $10,000. 2 51 And in Ohio, under the direct tax act, estates 
 of less than $20,000 are not taxable. The question has gen- 
 erally been whether these exemptions refer to the estate 
 of the decedent or the share of the legatee, — a conclusion 
 depending generally upon the statutory language used. In 
 New York, under the acts of 1885 and 1887, the rule was 
 that the tax was imposed, not upon the whole of decedent's 
 estate, passing by will or intestate law, unless the whole 
 descend to collaterals, and be thus made taxable, but upon 
 that specific part or interest passing to nonexempt persons, 
 heirs, devisees, or legatees 252 (the word "estate" in the act 
 referring to the last-named persons), unless the testator 
 
 249 Louisiana v. Peydras, 9 La. Ann. 165, 18 How. (U. S.) 192. 
 
 250 New Orleans v. Stewart's Estate, 28 La. Ann. 180. 
 
 251 Massachusetts, New York, California, and Illinois. 
 
 252 see chapter 7, § 64; In re Howe, 112 N. Y. 103, 19 N. E. 513, 
 affirming 48 Hun, 235, overruling In re Ghardavoyne, 5 Deui. Sur. 
 466; In re Cager's Will, 111 N. Y. 443, 18 N. E. 866; In re Sherwell's 
 Estate (1891) 125 N. Y. 376, 26 N. E. 464; In re Hall (Sup.) 34 
 N. Y. Supp. 616; In re Hoffman's Estate, 143 N. Y. 327, 3S N. 
 E. 311; In re Clark's Estate (Surr.) 5 N. Y. Supp. 199; McVean 
 v. Sheldon, 48 Hun, 163, overruling In re Miller, 5 Dem. Sur. 132. 
 See In re Thompson, 14 N. Y St. Rep. 487; In re McCready, 10 N. Y. 
 St. Rep. 696; In re Smith, 5 Dem. Sur. 00; In re Robertson, Id. 92; In 
 re Hopkins, 6 Dem. Sur. 1; In re Howard, 5 Dem. Sur. 483; In re 
 
 (134)
 
 Ch. 3] EXEMPTIONS. § 41 
 
 direct that the tax he paid, not by the taxable interest, but 
 out of his general estate, in which event the executor must 
 pay the tax. 253 
 
 It was finally determined in New York, under the acts 
 of 1887 and 1891, that, if the inheritance or testamentary 
 gift amounted to .ft 500 or more, then the act operated to cre- 
 ate a liability in favor of the state to the extent mentioned, 
 but, if it was less, the act was wholly inoperative, and that 
 the tax wa.s upon the share of the legatees, and not upon 
 the estate. 254 
 
 This condition of the law is evidenced by the remarks of 
 the court: 255 "In construing the inheritance tax law as it 
 stood prior to the act of 1892, we had occasion to decide 
 that it imposed a tax upon the right of succession to the 
 property of the testator or intestate which vested in the 
 successors severally, and in their respective shares or pro- 
 portions, and not upon the property or estate of the de- 
 Jones, Id. 30; Cora. v. Smith, 5 Pa. St. 144; Com. v. Smith, 20 Pa. 
 St. 104; Com. v. Kerchner, 24 Wkly. Notes Cas. 2G0. The words, 
 "being within the commonwealth," in the Pennsylvania statutes, were 
 held to refer to the property, and not to the person, of decedent, but 
 by subsequent statute they were made to refer to both. Com. v. 
 Smith, supra; In re Short's Estate, 16 Pa. St. 63; Carpenter v. Com., 
 17 How. (U. S.) 461; State v. Dalrymple, 70 Md. 294; 17 Atl. 82. See 
 Appeal of Commonwealth (Bittinger's Estate) 129 Pa. St. 338, 18 Atl. 
 132. 
 
 253 See chapter 7, §64; also, In re Thompson's Estate, 5 Wkly. 
 Notes Cas. 19; Shippen v. Burd, 42 Pa. St. 461; In re Horters 
 Estate, 1 Pears. 424; In re Murphy's Estate, 4 Pa. Co. Ct. R. 336; 
 In re Holbrook's Estate, 3 Pa. Co. Ct. R. 265; Com. v. Boyle, 2 Del. Co. 
 Rep. (Pa.) 335. But see In re Swift, 137 N. Y. 77, 32 N. E. 1096. 
 
 254 in re Sherwell's Estate (1891) 125 N. Y. 376, 26 N. E. 464; 
 Id. (Sup.) 12 N. Y. Supp. 200; In re Sterliug (1894) 30 N. Y. Supp. 
 386; In re Hoffman's Estate, 143 N. Y. 327, 38 N. E. 311; Id., 76 
 Hun, 399, 27 N. Y. Supp. 1086; citing Cager's Will, supra; In re 
 Howe, supra; In re Hall, supra. 
 
 255 i n re Hoffman's Estate, supra. 
 
 (135)
 
 § 41 EXEMPTIONS. [Ch. 3 
 
 cedent. The shares received, in the hands of the recipi- 
 ents, were the measures of the right which was subjected 
 to assessment, and the imposed tax could be enforced per- 
 sonally against the successor charged. One effect of this 
 construction manifested itself when a question arose over 
 the provision which limited the assessment to estates of 
 five hundred dollars or over. * * * We solved that 
 problem in two cases; 256 * * * and the word 'estate/ to 
 which the limitation of $500 was attached, must necessarily 
 mean the estate received by the particular successor, and 
 not that of the testator or intestate upon which, as such 
 and in the aggregate, no tax was imposed." The question 
 then arose under the transfer tax act of 1892 as to whether, 
 in view of its modification of the prior law, the tax was 
 imposed upon the decedent's estate, or upon the share of 
 the successor thereto. 
 
 Under this statute, 257 a tax is now imposed upon two 
 classes: First, a tax of 5 per cent, upon property of the 
 value of $500 or over passing to certain collateral heirs and 
 strangers, — i. e. to persons or corporations not exempt by 
 law from taxation on real aud personal property; 258 sec- 
 ond, a tax of 1 per cent, upon lineal heirs of decedent and 
 others specified; 259 the act providing in relation to this 
 class that "such transfer of property shall not be taxable 
 under this act, unless it is personal property of the value 
 of $10,000 or more." The words "estate" and "property" 
 are defined by the act 260 to mean the property or interest 
 therein of the testator, intestate, etc., passing or transferred 
 to those not specially exempted from the provisions of the 
 act, and not as the property or interest therein passing to 
 
 256 in re Cager, and In re Howe, supra. 
 
 257 Laws 1892, c 399, §§ 2, 3. 
 
 258 id. § 1. 
 
 259 Id. § 2. 
 
 260 id. § 22. 
 
 (136)
 
 Ch. 3] - EXEMPTION-. § 41 
 
 individual legatees, etc. The word "transfer" was defined 
 to include the passing of property or any interest therein, 
 etc., by inheritance, descent, devise, bequest, grant, deed, 
 bargain, sale, or gift. In considering the question as to 
 the meaning of the $10,000 clause, the lower courts held, in 
 pursuance of decisions under the previous acts, 261 that the 
 limit of $10,000 did not relate to the property of the de- 
 cedent, but to the shares of the legatees or lineal heirs, thus 
 making it possible for a testator to avoid the tax by redu- 
 cing intended legacies of $10,000 to lineals to a sum slightly 
 below that amount. The court of appeals overruled this 
 construction, and held that the portion of the statute pro- 
 viding that property passing to lineal heirs is exempt from 
 taxation, "unless it is personal property of the value of $10,- 
 000 or more," 262 meant the estate or property of the testa- 
 tor, and not that of the devisee or legatee ; and hence if the 
 aggregate estate of a decedent passing under this clause is 
 of the value of $10,000 or more, and passes to lineals, it is 
 liable to taxation, notwithstanding the shares of the lega- 
 tees may be less than that sum. 263 
 
 Finch, J., said: "The first question presented on this ap- 
 peal, relating to a life estate bequeathed to the mother of 
 the testatrix, and valued at less than $10,000, must be de- 
 cided, as it always has been in similar cases hitherto, in fa- 
 vor of the legatee, unless in that respect the law of 1892 has 
 
 26i See In re Hoffman's Estate, 76 Hun, 399, 27 N. Y. Supp. 10S6, 
 citing In re Howe, 112 N. Y. 100, 19 N. E. 513. 
 
 262 i Rev. st. tit. 4, pt. 1, c. 1, § 21. 
 
 263 i n re Hoffman's Estate, supra. See, also, In re Taylor's Estate 
 (1S93) 6 Misc. Rep. 277, 27 N. Y. Supp. 232; In re Hoffman's Estate, 
 5 Misc. Rep. 439, 26 N Y. Supp. 8S8, citing In re Flynn's Estate (Surr.) 
 30 N. Y. Supp. 3S8, and distinguishing In re Wheeler's Estate, 1 
 Misc. Rep. 450, 22 N. Y. Supp. 1075. See In re Ludlow's Estate, 4 
 Misc. Rep. 594, 25 N. Y. Supp. 9S9; In re Millward's Estate, 6 Misc. 
 Eep. 425, 27 N. Y. Supp. 2S6; In re Hall (Sup.) 34 N. Y. Supp. 616. 
 
 (137)
 
 § 41 EXEMPTIONS. [Ch. 3- 
 
 changed the necessary interpretation. But I think it has, 
 and that such result was directly and consciously intended 
 by the legislature. * * * I am unable to understand 
 the entirely new provision of section 22, unless its purpose 
 is to compel a change of our previous construction, and re- 
 quire us to attach the limitation of $10,000 of value to the 
 estate of the decedent, and not to the several and particular 
 estate passing to the successor." 
 
 In referring to section 22 above, the court said: 
 "It will be observed that the idea of the lawmaker is ex- 
 plained by declaring, not only what the words 'estate 7 and 
 'property,' as used in the act, shall mean, but also what they 
 shall not mean; and the negation is a denial in terms of 
 the precise construction which this court had previously 
 adopted in determining what was meant by the word 'es- 
 tate' when used ambiguously and without qualifying words, 
 as it was used in connection with limitations of value. 
 * * * Nothing, therefore, in these definitions, can be 
 permitted to touch our general doctrine of the nature of 
 the tax. But what, then, do they touch, and what pur- 
 pose do they subserve? We must look for some place in 
 the act where the word 'property' is used by itself, and, to 
 some extent, ambiguously, and therefore needs the help 
 of a definition. We find such a possible place in section 
 2, where the phrase is 'unless it is personal property of the 
 value of ten thousand dollars or more.' That may mean the 
 aggregate value of all the property transferred to taxable 
 persons, or the separate value of each several transfer. We 
 had said that it meant the latter, but now comes the legis- 
 lature declaring that the word 'property' shall mean what 
 passes to those not exempted, and not what passes to indi- 
 vidual transferees. While the prohibition cannot apply 
 to the general theory of the tax, it can apply to this de- 
 scription of a specific limitation. 
 "We had said it related to the property of individual 
 (138)
 
 Ch. 3] EXEMPTIONS. § 41 
 
 transferees, but that construction section 22 was intended 
 to forbid and prevent If it does not mean that, I am un- 
 able to perceive any office it can perform, or any useful pur- 
 pose it can subserve. That effect, I think, we are bound 
 to give it, since we can do so without disturbing the scope 
 of the act, and in view of the legal situation which existed 
 and the possible evil which it was thought prudent to pre- 
 vent. 
 
 "And so we are prepared to say that the interest of the 
 mother is taxable at one per cent., although itself of a value 
 of less than $10,000, because the aggregate transfers by the 
 will to taxable persons exceeded that amount." 
 
 While it is true that Finch, J., in the beginning of his 
 opinion, suggested 264 that the tax was one upon the right 
 of succession, and added that it was levied upon successors 
 in respect to the shares to which they succeed, and not upon 
 the decedent's estate as such, yet the language of the opin- 
 ion cited above shows clearly that the court adjudged oth- 
 erwise; and under these adjudications the rule would now 
 seem to be settled in New York, under the act of 1892, that 
 the tax is not, as formerly, upon the share or interest pass- 
 ing to the legatee or devisee, but upon the aggregate value 
 of the testator's or decedent's estate passing to taxable 
 persons, whether of the lineal or collateral class. 
 
 So it has been held under the $500 clause of the New 
 York act of 1892 that in every case where property, real and 
 personal, of the value of $500 or more, passes to persons 
 or corporations (collaterals) not exempt from taxation, the 
 liability to tax at the rate of 5 per cent, exists, and the 
 liability is not affected by the size of the individual 
 shares. 265 The property exempted under this clause is not 
 the property passing to the legatee, which must be less than 
 
 264 in re Hoffman's Estate, supra. 
 
 2G5 i n re Taylor's Estate (Surr.; 1893) 27 N. Y. Supp. 232. 
 
 (139)
 
 § 41 EXEMPTIONS. [Ch. 3 
 
 in order to entitle the same to exemption, but the 
 amount of all property passing to legatees of the unexempt- 
 ed class, which must be less than $ 500. If the aggregate 
 estate passing to nonexempt persons is $500 or over, it is 
 taxable, notwithstanding the individual legacies are under 
 that amount. 266 It is the "transfer" that is taxed, and not 
 the "estate" of the beneficiaries respectively. It is the prop- 
 erty as a whole as it descends from the decedent, and not 
 the separate parcels into which it may be divided, whether 
 the tax falls under the 1 per cent, or under the 5 per cent, 
 provision. This view is in harmony with the evident policy 
 of the law that all property of the decedent shall be subject 
 to the tax, except in small estates of less than $500. 267 
 
 The exemption in the statute of Maine 268 providing that 
 all property which shall pass by will or by the intestate 
 laws of the state "shall be liable to a tax of two and one- 
 half per cent, of its value, above the sum of $500," is not an 
 exemption from the corpus of the estate, but is an exemp- 
 tion of that sum from each and every legacy or share given 
 or descending to persons within the classes subject to the 
 excise. 269 
 
 "It is also contended that the tax is unreasonable on ac- 
 count of the exemption contained in the proviso of the first 
 section of the statute. In all, or nearly all, systems of taxa- 
 tion, there are some exemptions, but the objection here is 
 that estates whose value, after payment of all debts, shall 
 not exceed $10,000, are exempt, without regard to the value 
 of the property received by the devisees, etc. 
 
 zee in re Flynn's Estate (Surr.; 1893) 30 N. Y. Supp. 388; In re 
 Hall (Sup.) 34 N. Y. Supp. 616. Contra, In re Sterling's Estate 
 (Surr.; 1894) 30 N. Y. Supp. 385. 
 
 267 Ward, J., in Re Hall (Sup.) 34 N. Y. Supp. 616; citing In re 
 Hoffman's Estate, 143 N. Y. 327, 38 N. E. 311. 
 
 26 8 Laws 1893, c. 146, § 1, Appendix. V. 
 
 269 state v. Hamlin (1894) 86 Me. 495, 30 Atl. 76. 
 (140)
 
 Ch. 3] EXEMPTIONS. § 41 
 
 "It is argued that the excise, if upon the privilege of tak- 
 ing property by will or descent, should be the same when- 
 ever the privilege enjoyed is the same in kind and extent, 
 whatever may be the value of the estate, and that the ex- 
 emptions should relate to the value of the property re- 
 ceived by those who have the privilege of receiving it, and 
 not to the value of the estate. But the right or privilege 
 tax can perhaps be regarded either as the right or privilege 
 of the owner of property to transmit it on his death, by will 
 or descent, to certain persons, or as the right or privilege of 
 these persons to receive the property. The tax, too, has 
 some of the characteristics of a duty on the administration 
 of estates. * * * 
 
 "The statutes of the different states and nations which 
 have levied taxes on devises, legacies, and inheritances have 
 usually made exemptions, and these have sometimes related 
 to the values of the estates, and sometimes to the value of 
 the property received by the heirs, etc. The exemption in 
 the statute under consideration is certainly large as an ex- 
 emption of estates, but it is peculiarly within the discretion 
 of the legislature to determine what exemptions should be 
 made in apportioning the burdens of taxation among those 
 who can best bear them, and we are not satisfied that this 
 exemption is so clearly unreasonable as to require us to 
 declare the statute void." 270 
 
 Under the New York statute, which exempts all estates 
 from the tax that may be valued at a less sum than $500, 
 it was held that a legacy of that amount not by law payable 
 until a year after decedent's death is not subject to the tax, 
 as its "clear market value" at the time of death was less 
 than |500. 271 The settled rule now is that, if the legacy 
 
 270 Field, C. J., in Minot v. Winthrop (1894) 162 Mass. 116, 38 
 N. E. 516. 
 
 271 In re Peck's Estate (Suit) 9 N. Y. Supp. 465, followed in Re 
 Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 239, citiDg Thorn v. 
 
 (141)
 
 § 41 KXEMPTIONS. [Ch. 3 
 
 amounts to $500 or over, a liability in favor of the state is 
 created. If the value of the legacy is less than $500, the act 
 is wholly inoperative. 272 
 
 In Pennsylvania an estate which may be valued at less 
 than $250 is exempt. Under this clause of the statute, as 
 under the New York cases, it is held that the word "estate" 
 does not refer to the interest of the legatee, but to the prop- 
 erty of the decedent; hence, although the legacies are under 
 that sum, if the total value of the estate exceeds $250, such 
 legacies are taxable, one of the reasons given being that 
 otherwise a testator might divide a large estate into innu- 
 merable small legacies of less than $250, and thus defeat 
 the tax. 273 
 
 While this question was for a time unsettled in Pennsyl- 
 vania, 274 it has been finally held by the supreme court that 
 the liability to the tax is to be determined, not by the 
 amount of the legacy, but by the clear value of decedent's 
 estate passing to persons or bodies politic not exempt from 
 taxation. If the net value of the estate to be distributed 
 exceeds $250, all legacies or distributive shares passing to 
 collaterals, etc., are liable to the tax. 275 
 
 Hence, where the testator bequeathed seven legacies of 
 
 Garner, 113 N. Y. 198, 21 N. E. 149. Contra, In re Pond, N. Y. Daily 
 Reg. May 25, 1889; In re Bird's Estate (Surr.) 11 N. Y. Supp. 895. 
 See In re Cager's Will, 111 N. Y. 343, 18 N. E. 866. 
 
 272 i u re Sherwell's Estate, 125 N. Y. 379, 26 N. E. 464. 
 
 273 i n re King's Estate, 11 Phila. 27; Com. v. Boyle, 2 Del. Co. 
 Rep. (Pa.) 335. Contra, Com. v. Kerschner, 24 Wkly. Notes Cas. 260, 
 6 Lane. Law Rev. 308; In re Evans' Estate (1891) 8 Lane. Law Rev. 
 321. See In re Miller, 5 Dem. Sur. 132. 
 
 274 see "Current Comments and Legal Miscellany" (Philadelphia, 
 March 15, 1891), p. 178. 
 
 275 Howell's Estate (Appeal of Philadelphia Protestant Episcopal 
 City Mission; 1892) 147 Pa. St. 164, 23 Atl. 403, 48 Leg. Int. 296, and 
 10 Pa. Co. Ct. R. 232; Mixte^s Estate, Id. 409, 8 Lane. Law Rev. 335. 
 See this subject considered in connection with the New York and 
 
 (142)
 
 Cll. o] EXEMPTIONS. § 42 
 
 $200 each to seven charities, and the legacies amounted in 
 the aggregate to an estate exceeding $250, each of the lega- 
 cies was held chargeable with the tax. 276 
 
 § 42. Foreign Real Estate. 
 
 Real estate situated in a foreign state, although owned 
 by a citizen of the taxing state, unless directed by will to 
 be converted into personalty, cannot be taxed by the latter 
 state, as it is not within the jurisdictional power of one 
 state to impose a succession tax upon real property beyond 
 its jurisdiction. 277 In New York it has been held that such 
 real estate belonging to a resident, even where the will di- 
 rects an equitable conversion, cannot be taxed. 278 And 
 under the act of 1892, 279 it has also been held that real es- 
 tate passing by will to the widow or children of testator is 
 not liable to taxation; 280 but it seems that an infant's 
 share of the proceeds of a partition sale of land is taxable 
 as personal property under the act of 1892, 281 which ex- 
 empts from taxation property passing to certain lineals, 
 "unless it is personal property of the value of $10,000 or 
 more, in which case it shall be taxable." 282 
 
 Pennsylvania cases,— by O. B. Penrose, Esq., in 49 Leg. Int. 26; by 
 Hanna, P. J., in 23 Atl. 403; and by Samuel H. Thomas, Esq., in 10 
 Pa. Co. Ct. R. 410. 
 
 27 6 Howell's Estate, supra. See, also, Mixter's Estate (1891) 10 Pa. 
 Go. Ct. R. 409. 
 
 277 see chapter 2, § 15. Also, In re Wolfe, 19 N. Y. St. Rep. 263; 
 Miller v. People, sub nom. Lorillard v. People, 6 Dem. Sur. 26S; 
 Estate of Dewey, N. Y. Law J. Oct. 21, 18S9; Bittinger's Estate 
 (Appeal of Commissioners) 129 Pa. St. 338, 18 Atl. 132. 
 
 27 8 in re Swift, 137 N. Y. 77, 32 N. E. 1096. 
 
 279 Acts N. Y. 1S92, c. 399, § 2. 
 
 2 80 in re Taylor's Estate (Surr.; 1893) 27 N. Y. Supp. 233. 
 
 28i Acts N. Y. 1892, c. 399, § 2. 
 
 282 in re Stiger (Surr.; 1894) 28 N. Y. Supp. 163. 
 
 (143)
 
 § 43 EXEMPTIONS. [Ch. 3- 
 
 § 43. Legacies when Exempt under Acts 
 of Congress. 
 
 The act of congress 283 imposing a tax upon legacies aris- 
 ing from personal property does not apply to legacies aris- 
 ing from real estate, although the testatrix directed its sale 
 for the purpose of paying the legacies. In limiting the 
 scope of the law to legacies of personal property, the in- 
 ference is that it was intended to exempt such as were pay- 
 able from the proceeds of real estate. 284 So where money 
 is received by claimants under a deceased person's will, by 
 virtue of a compromise contract between them and the ex- 
 ecutors, sanctioned by a court having jurisdiction, the mon- 
 ey so received does not fall within the category of legacies 
 or distributive shares in intestate estates, which are subject 
 to a federal internal revenue tax. 285 
 
 So money distributed by act of congress to heirs of a de- 
 cedent arising out of the French spoliation claims is not a 
 part of the estate of decedent, but a gift from congress to 
 such heirs, and is not liable to the tax. 288 
 
 An estate bequeathed to testator's brother, and, in case 
 of his death before testator's, to the brother's executors, is 
 not chargeable in the hands of such executors with second 
 probate and estates duties, where such duties have been 
 paid by the testator's executors. 287 
 
 2 83 Act Cong. July 1, 1862. 
 
 2 84 TJ. S. v. Watts, 1 Bond, 581, Fed. Cas. No. 16,653. 
 
 285 Page v. Rives, 1 Hughes, 297, Fed. Cas. No. 10,666. But see 
 Brune v. Smith, 13 Int. Rev. Rec. 54, Fed. Cas. No. 2,053; Ex parte 
 Sitwell, 59 Law T. R. 539. 
 
 286 in re Kingston's Estate (1891) 28 Wkly. Notes Cas. 284. 
 2 87 Attorney General v. Loyd [1895] 1 Q. B. 496. 
 
 (144)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 44 
 
 CHAPTER IV. 
 
 ESTATES OF RESIDENT AND NONRESIDENT DECEDENTS. 
 
 fj 44. General Rules as to Domicile and Situs. 
 
 45. Conflict under These Statutes. 
 
 46. Resident Decedents, Their Heirs and Legatees. 
 
 (a) As to Personalty. 
 
 (b) Real Estate under Doctrine of Equitable Conversion. 
 
 47. Nonresident Decedents, Their Heirs and Legatees.! 
 
 (a) The English Rule of "Mobilia Sequuntur Personam." 
 
 (b) Application of the Rule in America. 
 
 (c) The Rule as Applied to Tangible and Intangible Prop- 
 
 erty. 
 
 (d) Where Succession Takes Place, for Purposes of Tax- 
 
 ation. 
 
 48. Foreign Legacies.2 
 
 49. Rules Where Nonresident Decedent's Debts Exceed Value of 
 
 Estate. 
 
 § 44. General Rules as to Domicile and Situs. 
 
 Perhaps some of the most complicated questions arising 
 under these laws are those concerning the liability, for the 
 payment of succession or legacy taxes, of estates or prop- 
 erty, within the taxing state, belonging to nonresident or 
 alien decedents, and passing to their heirs, devisees, or lega- 
 tees by will or intestate law, and the liability of resident 
 decedents to pay the tax where the property is situated 
 abroad, or in a foreign state. The law upon this subject is 
 as yet but partly developed in this country. 
 
 Generally, with respect to personal property taxes, it is 
 
 i See article on this subject by John A. McCarthy, Esq., in 32 Am. 
 Law Reg. (N. S.) April, 1893, p. 365; also, In re Small's Estate, 151 
 Pa. St. 1, 25 Atl. 23. 
 
 2 As to foreign corporations, see chapter 3, § 36. 
 
 LAW INHER. 10 Q45)
 
 § 44 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 not necessary r that the person and property should both be 
 within the jurisdiction of the taxing state, but, in order to 
 be taxable, it is sufficient if either is; and it is said that 
 the state, at its option, may impose the tax upon tangible 
 property within its borders, irrespective of the residence or 
 allegiance of the owner. 3 
 
 These principles may be said, with some exceptions, to 
 be applicable to collateral inheritance, legacy, or succes- 
 sion taxes; and jurisdiction is conferred either by the fact 
 of property or person being within the state, or both. 4 
 
 The legislature has the power, as we have already seen, 5 
 to impose these taxes, not only where they affect citizens, 
 but also where nonresidents or aliens claim, by inheritance 
 or will, property actually located within the state, and also 
 personal property situated elsewhere, but owned by a resi- 
 dent. 6 
 
 The state can rightfully tax as the property of a resident 
 the registered public debt of another state, although the 
 debtor state may have exempted it from taxation, or actu- 
 ally taxed it. 7 
 
 Under general tax laws, so far as nonresidents are con- 
 cerned, it is held that such taxes are not a charge against 
 
 s Cooley, Tax'n (2d Ed.) 55, 56. 
 
 * In re Bittinger's Estate (Appeal of Commonwealth) 129 Pa. St. 
 338, 18 Atl. 132; In re Short's Estate, 16 Pa. St. 67; State v. 
 Dalrymple, 70 Md. 294, 17 Atl. 82; In re Small's Estate, 151 Pa. 
 St. 1, 25 Atl. 23. See note on "Nonresidents," 32 Am. Law Reg. (N. 
 S., 1893) p. 365. 
 
 5 Chapter 2, § 29. 
 
 « State v. Dalrymple, supra; Alvany v. Powell, 2 Jones, Eq. 51; In 
 re Romaine's Estate (1891) 127 N. Y. 86, 27 N. E. 759; Id., 58 Hun, 
 109, 11 N. Y. Supp. 313; Leg. Int. June 26, 1891, p. 265; 43 Alb. 
 Law J. 513; Thomson v. Advocate General, 12 Clark & F. 1; In 
 re Cigala. 7 Ch. Div. 356. But see In re James, 144 N. Y. 6, 3S 
 N. E. 961. 
 
 7 Bonaparte v. Tax Court, 104 U. S. 595. 
 (14G)
 
 •Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 45 
 
 the owner personally, but must be enforced against the 
 property itself; and the state would seem to have no juris- 
 diction to assess the owner personally. 8 
 
 § 45. Conflict under These Statutes. 
 
 But perhaps no subject has afforded more ground for con- 
 tention and conflict, in the courts of England and America, 
 than the one concerning the liability of personal property 
 of nonresident or alien decedents, within the taxing state. 9 
 
 And the question has generally been whether the domi- 
 cile of the owner, or the situs of the property, should be 
 taken as the governing principle or basis for ascertaining 
 the liability to such taxes; some courts adopting the domi- 
 cile, and others the situs, as the ground of such liability. 
 
 This conflict will be found to have become more or less 
 complicated by several considerations, among others: 
 
 (a) By the application, to a greater or less extent, of the 
 maxim, "Mobilia sequuntur personam." 10 This rule has 
 been applied fully in the English courts under the legacy 
 act, and, in a restricted sense, under the succession act. 
 
 s Cooley, Tax'n (2d Ed.) 21; citing People v. Supervisors of Chen- 
 ango Co., 11 N. Y. 563; Hilton v. Fonda, 86 N. Y. 339. As to when 
 property sent here for investment by foreigners is exempt from 
 taxation after owner's death, see In re Smith's Estate (Surr.) 4 N. Y. 
 Supp. 467. 
 
 9 See Layton on Succession and Legacy Duties, introduction to 
 fifth edition. See article entitled "Collateral Inheritance Tax in Con- 
 nection with Transfer of Stocks and Loans by Foreign Executors 
 and Administrators," Alb. Law J. April 16, 1892, p. 331, by E. H. 
 Blanc, Esq. 
 
 io See Pullman's Palace Car Co. v. Pennsylvania (1S91) 141 U. S. 
 18, 22, 11 Sup. Ct. 876, affirming 107 Pa. St. 156; In re Small's Es- 
 tate, 151 Pa. St. 1, 25 Atl. 23; 32 Am. Law Reg. (N. S.) 365; In re 
 Romaine, 127 N. Y. 86, 27 N. E. 759; In re Swift, 137 N. Y. 77, 32 
 N. E. 1096; 5 Pol. Science Quart. Dec, 1S90, p. 646; In re James, 
 144 N. Y. 6, 38 N. E. 961. 
 
 (147)
 
 § 46 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 (b) By the distinction made, under this maxim, in cer- 
 tain American courts, especially in Pennsylvania, and re- 
 cently in New York, 11 between tangible and intangible prop- 
 erty, which will hereafter be considered. 
 
 (c) And, on the other hand, by the application in many 
 states of doctrines of public policy, so as to tax nonresident 
 or alien estates equally with those belonging to residents, 
 and thus prevent discrimination between the two classes. 12 
 
 (d) By questions of construction naturally arising in dif- 
 ferent courts in construing different statutes. 
 
 The principles enunciated by the courts, under these stat- 
 utes, concerning the liability of the estates of resident and 
 nonresident or alien decedents, will be treated in the order 
 following: 
 
 § 46. Resident Decedents, Their Heirs and 
 Legatees. 
 
 (a) As to Personalty. 
 
 While, under property tax laws, it is not the general rule 
 to tax the personalty of a resident of the taxing state, the 
 actual situs of which is in a foreign state or country, 13 this 
 would seem to be constantly done under legacy or succes- 
 sion tax laws; and here the fiction of "Mobilia sequuntur 
 personam" fully applies, as the property is usually drawn 
 or remitted to the owner's domicile for administration and 
 distribution, unless detained at the situs by creditors. 14 
 
 ii In re Phipps, 77 Hun, 325, 28 N. Y. Supp. 330; In re James, 144 
 N. Y. 6, 38 N. E. 961. 
 
 12 State v. Dairy inple, Alvany v. Powell, and In re Romaine, supra, 
 are the leading cases. 
 
 is People v. Commissioners of Taxes, 23 N. Y. 224; People v. Smith, 
 88 N. Y. 576; People v. Gardner, 51 Barb. 352; People v. Coleman, 
 119 N. Y. 137, 23 N. E. 488; People v. Barker, 135 N. Y. 656, 32 N. E. 
 252. 
 
 i* Kintzing v. Hutchinson, 34 Leg. Int. 365; Allen v. Philadelphia 
 
 (148)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 46 
 
 Hence, there would seem to be no question, among any 
 of the authorities, that such personal property of a deceased 
 resident, wherever situated, and the real or leasehold estate 
 within the state of his domicile, passing to persons subject 
 to the tax, and whether such personal property be of a tan- 
 gible or intangible nature, are taxable under these laws. 
 This rule, under the fiction of law, applies both against res- 
 ident and nonresident legatees or devisees of such a dece- 
 dent, as to personalty, wherever it be situated. 15 
 
 Hence, stocks of a foreign corporation, held by the ex- 
 
 Sav. Fund, 25 Int. Rev. Rec. 171; Bruce v. Bruce, 2 Bos. & P. 229, 
 note; In re Short's Estate, 16 Pa. St. 66; McKeen v. Northampton 
 Co., 49 Pa. St. 519; and cases cited section 44, supra. 
 
 is Tyson v. State, 28 Md. 577; Mager v. Grima, 8 How. 490; 
 Eyre v. Jacob, 14 Grat. 422; State v. Dalrymple, 70 Md. 294, 17 
 Atl. 82; In re Bittinger's Estate, 129 Pa. St. 338, 18 Atl. 132; In re 
 Short's Estate, supra; Orcutt's Appeal, 97 Pa. St. 184; Com. v. 
 Smith, 5 Pa. St. 143; Alexander's Appeal, 3 Clark (Pa.) 87; U. S. 
 v. Hunnewell, 13 Fed. 617; Stokes v. Ducroz, Layton, Leg. and 
 Succ. Duties (7th Ed.) 20; Chatfield v. Berchtoldt, 7 Ch. App. 192; 
 In re Ewin, 1 Cromp. & J. 151; Attorney General v. Napier, 6 
 Exch. 217; Forbes v. Steven, L. R. 10 Eq. 17S; Custance v. Brad- 
 shaw, 4 Hare, 315; In re Coales' Estate, 7 Mees. & W. 390; Arnold 
 v. Arnold, 2 Mylne & C. 256; In re Cigala (1878) 7 Ch. Div. 351; 
 In re Enston's Will. 113 N. Y. 181, 21 N. E. 87. See, also, Cooley, 
 Tax'n (2d Ed.) 44, 56; Alvany v. Powell, 2 Jones, Eq. 51; State v. 
 Brevard, Phil. Eq. 141; Com. v. Brenner, 2 Leg. Gaz. (Pa.) 413; 
 People v. Commissioners of Taxes, 51 Hun, 312, 3 N. Y. Supp. 8S5. 
 See, also, In re Line's Estate (1893) 155 Pa. St. 37S, 26 Atl. 728; 
 In re Stanton's Estate (1894) 34 Wkly. Notes Cas. 391; In re Strong 
 (Aug., 1894) 17 N. J. Law J. 234; In re Swift (1S93) 137 N. Y. 77, 
 88, 32 N. E. 1096, affirming (Sup.) 19 N. Y. Supp. 292; In re Merriarn's 
 Estate (1894) 141 N. Y. 484, 36 N. E. 505; Iu re Coming's Estate 
 (1893; Surr.) 23 N. Y. Supp. 285. In Dallinger v. Rapeilo, 14 Fed. 
 32, it was held that the personal property of a deceased inhabitant 
 was not taxable within the state, after the appointment of an exec- 
 utor, and before distribution, where the property was not within 
 the state, and neither the executor nor any person in interest had 
 a doinicil there. The decision, however, was on the construction of 
 
 (149)
 
 § 46 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 ecutor of a resident decedent, are to be regarded as part 
 of the estate, subject to the tax. To compute the succes- 
 sion tax on the total personal estate is not imposing a tax 
 on the stocks of foreign corporations constituting a part of 
 the estate. 18 
 
 Notes secured by mortgages of land in another state, and 
 owned by a resident of New York at his death, are within 
 the statutes of that* state 17 declaring subject to the legacy 
 taxes "all property that shall pass by will * * * from 
 any person who may die * * * possessed of the same 
 while a resident of this state; and it is immaterial that 
 the notes and mortgages are in the hands of the owner's 
 agent in the state where the land is situated. 18 But where 
 the personal estate of a resident decedent consisted of a 
 share in the estate of a decedent who resided in another 
 state, and was not received by decedent before her death, 
 but came afterwards to the hands of her executors for the 
 purpose of distribution, it is not taxable. 19 
 
 the statute, and not upon the point of state power. See Cooley, 
 Tax'n (2d Ed.) p. 55, note. 
 
 16 In re Merriam's Estate (1894) 141 N. Y. 4S4, 36 N. E. 505; In 
 re Swift. 137 N. Y. 77, 88, 32 N. E. 1096. These cases overrule In 
 re Thomas (1893) 3 Misc. Rep. 388, 24 N. Y. Supp. 713. See, also, 
 In re Coming's Estate (1893) 3 Misc. Rep. 160, 23 N. Y. Supp. 2S5; 
 In re Stanton's Estate (1S94) 34 Wkly. Notes Cas. 391; Common- 
 wealth's Appeal (Small's Estate) 151 Pa. St. 1, 25 Atl. 23; Weaver's 
 Estate (1895) 12 Lane. Law Rev. 57; In re Coleman's Estate, 159 Pa. 
 St. 231, 28 Atl. 137; In re Strong, 17 N. J. Law J. (Aug., 1S94) 234; 
 Estate of Lines (1893) 155 Pa. St. 378, 26 Atl. 728. 
 
 i? Laws 1885, c. 4S3, as amended by Laws 1S91, c. 215. 
 
 is In re Coming's Estate (1893) 3 Misc. Rep. 160, 23 N. Y. Supp. 
 285, citing In re Swift, 137 N. Y. 77, 32 N. E. 1096; In re Bittinger's 
 Estate, 129 Pa. St. 338, 18 Atl. 132. 
 
 i» In re Thomas (1893) 3 Misc. Rep. 38S, 24 N. Y. Supp. 713. 
 See In re Phipps (1894) 77 Hun, 325, 28 N. Y. Supp. 330, affirmed 
 143 N. Y. 641, 37 N. E. 823. Contra, Weaver's Estate (1895) 12 
 Lane. Law Rev. 57, 52 Leg. Int. 197. 
 (150)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 4G 
 
 So the Pennsylvania statute 20 taxes all personal prop- 
 erty of a resident decedent, no matter where situated, in- 
 cluding debts secured by mortgages upon lands in other 
 states. 21 
 
 Interest in a partnership, actually within the state, con- 
 sisting of land, stocks, bonds, and accounts, are taxable. 22 
 
 A fund inherited by a nonresident shortly before his 
 death, and paid over to his administrator in Pennsylvania 
 by the administrator of a resident of that state, is subject 
 to the collateral tax. It appeared that the fund had a situs 
 in Pennsylvania and not at the domicile of the owner. 23 
 
 So it is held in New Jersey that personal property of a 
 resident, which at the time of decedent's death was within 
 the jurisdiction of another state, is subject to the collateral 
 inheritance tax imposed by the state of residence, although 
 the will was not proved in the latter state. 24 
 
 And in Pennsylvania, where a resident decedent made a 
 trust deed of certain bonds and stock of foreign corpora- 
 tions to a trustee (corporation) in another state, giving it 
 legal title thereto, but reserving the income to himself for 
 life, with power of revocation, aud directing that after his 
 death the property be distributed among certain beneficia- 
 ries, it was held that the rule of the domicile applied, and 
 that the property was taxable under the statute. 25 
 
 20 Laws 1887, p. 79, Appendix, III. 
 
 2i In re Stanton's Estate (1894) 34 Wkly. Notes Cas. 391, 15 Pa. 
 Co. Ct. R. 17, 3 Pa. Dist. Ct. 371, and 51 Leg. Int. 172. 
 
 22 Appeal of Commonwealth (Small's Estate) 151 Pa. St. 1, 25 
 Atl. 23; distinguishing Orcutt's Appeal, 97 Pa. St. 185. 
 
 2 3 in re Weaver's Estate, 12 Lane. Law Rev. 57, 52 Leg. Int. 197. 
 
 24 in re Strong, 17 N. J. Lnw J. (Aug., 1894) 234; following In re 
 Swift, 137 N. Y. 80, 32 N. E. 1096. 
 
 2 5 Estate of Lines (1S93) 155 Pa. St. 37S, 26 Atl. 728, 24 Pittsh. 
 Leg. J. (N. S.) 29; citing Orcutt's Appeal, 97 Pa. St. 179. 
 
 (151)
 
 § 46 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 (b) Real Estate under Doctrine of Equitable Conversion* 
 
 Where the real estate of the decedent is situated in a 
 foreign country, no direct tax under these laws can be im- 
 posed. Being beyond the jurisdiction of the state of domi- 
 cile, such real property cannot be reached under these laws 
 for the purpose of taxation, even though devised to a resi- 
 dent of the taxing state. 27 
 
 Any law in the nature of a direct tax, having this object 
 in view, would, it seems, infringe upon constitutional 
 grounds, and be unenforceable by the state; 28 but it would 
 seem that the state has the power to impose a succession 
 tax upon every citizen of the state who succeeds to either 
 real or personal property, from whatever source received, 
 if it is not in the nature of a direct tax. 29 
 
 One of the most interesting questions arising under these 
 statutes is that concerning the taxation of real estate, for- 
 eign or domestic, under the doctrine of an equitable conver- 
 sion by will, where the will treats it as personalty. 30 The 
 decisions are conflicting as to how far the state can take 
 
 2 6 See this subject discussed in a valuable note by H. W. Page, 
 Esq., in 32 Am. Law Reg. (N. S.) 472, entitled "Collateral Inherit- 
 ance Tax-Conversion of Land Outside of State." 
 
 27 In re Swift, 137 N. Y. 77, SS, 32 N. E. 1096, affirming 19 N. Y. 
 Supp. 292; In re Coleman's Estate (1893) 159 Pa. St. 231, 28 Atl. 
 137; Commonwealth's Appeal (Small's Estate) 151 Pa. St. 1, 25 
 Atl. 23; Miller v. Com., Ill Pa. St. 321, 2 Atl. 492; Lorillard v. 
 People, 6 Dem. Sur. 268; Drayton's Appeal, 61 Pa. St. 172; Com. 
 v. Coleman, 52 Pa. St. 468; Hood's Estate, 21 Pa. St. 106; Kintzing 
 v. Hutchinson, Fed. Cas. No. 7,834; In re Wolfe, 19 N. Y. St. Rep. 
 263; Estate of Dewey, N. Y. Law J. Oct. 21, 1889. 
 
 28 Commonwealth's Appeal (Estate of Bittinger) 129 Pa. St. 338, 
 18 Atl. 132, and cases cited in chapter 2, § 15. See Com. v. Coleman, 
 52 Pa. St. 468. But see Estate of Dewey, supra. 
 
 29 In re Bittinger's Estate, supra. 
 
 so see 32 Am. Law Reg. (N. S.) 472, by H. W. Page, Esq. 
 (152)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 46 
 
 advantage of this doctrine in order to impose a legacy or 
 succession tax upon the proceeds of such real estate, where 
 it is not taxable per se as real estate, or where it is situate 
 beyond the jurisdictional limits of the taxing state. 
 
 In England it was said at an early date that equity will 
 not alter the nature of property for the purpose only of sub- 
 jecting it to fiscal claims, to which at law it was not liable 
 in its existing state. 31 And, in Forbes v. Steven, 32 James, 
 L. J., showed his ideas of the doctrine when he said: "It 
 would take a good deal more than I have yet heard to sat- 
 isfy me that a man can, with the same breath, say effectual- 
 ly in this court, 'give me the money because it is residuary 
 personal estate,' and declare it is not taxable because it is 
 not residuary personal estate." Yet, under the probate 
 duty act, the law regarding partnership has been settled; 
 and real estate, being in the nature of personalty, and sub- 
 ject to conversion with all the other assets, is held liable 
 to duty. 33 And, as regards a British subject, the succession 
 duty has even attached to foreign real estate used in a co- 
 partnership as an asset, a member of which firm was a 
 domiciled Englishman. 34 
 
 In New York the doctrine of equitable conversion is well 
 settled, and a will devising the residue of a testator's prop- 
 erty to trustees, with directions to convert it into money, 
 and to divide it among designated legatees, works a con- 
 si Custance v. Bradshaw (1845) 4 Hare, 315. 
 3 2 L. R. 10 Bq. 192. 
 
 33 Attorney General v. Hubbuck, 10 Q. B. Div. 488; Waterer v. 
 Waterer, L. R. 15 Eq. 402; Cooper v. Cooper, 26 Wkly. Rep. 7S5. 
 See Attorney General v. Dodd (1894) 2 Q. B. 150. 
 
 3 4 Forbes v. Steven, L. R. 10 Eq. 178. For a discussion of the 
 English cases on the question of the equitable conversion of the real 
 estate into personalty for the purpose of taxation under these acts, 
 see note to In re Williamson's Estate, 32 Am. Law Reg. (N. S.) 472, 
 26 Atl. 246, by H. W. Page, Esq., criticising the rule. 
 
 (153)
 
 § 46 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 version of realty into personalty, and in construing the will 
 the rules governing personalty are to be applied. 35 
 
 Recently, in that state, the subject of the taxation of for- 
 eign real estate belonging to a resident, under the doctrine 
 of equitable conversion by will, has been considered; and 
 it was held, under the act of 18S7, that such real estate, al- 
 though directed to be converted into personalty, w T as not 
 taxable, because the statute did not intend to tax it, and the 
 doctrine of equitable conversion was also held not appli- 
 cable to subject it to taxation. 38 
 
 The question was only briefly considered in this case, and 
 no reasons were given by the court, except those stated 
 above. It was raised later in the court of appeals, 37 and 
 was said to be a difficult question, but the court did not 
 discuss it further. The rule has, however, since been fol- 
 lowed. 
 
 The doctrine is not applicable under the statute for the 
 purpose of making a legacy of money one of real estate, into 
 which it was directed to be invested by the executors for 
 the legatee's benefit. 38 
 
 And a legacy to a church for the purpose of building a 
 new one, or renovating the old, cannot, under the doctrine 
 
 8 5 Bowditch v. Ayrault (N. Y. App.) 33 N. E. 1067; Foster v. Win- 
 field (Super. N. Y.) 23 N. Y. Supp. 172; White v. Howard, 46 N. Y. 
 144; In re Fox's Will, 52 N. Y. 536; Power v. Cassidy, 79 N. Y. 602. 
 
 3 6 In re Swift (1893) 137 N. Y. 77, 32 N. E. 1096; Id. (Sup.) 19 N. Y. 
 Supp. 292; In re Secor (June 22, 1893) 9 N. Y. Law J. 779. See In re 
 Coleman's Estate (1S93) 159 Pa. St. 231, 28 Atl. 137; In re Small's 
 Estate, 151 Pa. St. 1, 25 Atl. 23, 28. These cases practically overrule 
 In re Wheeler's Estate, 1 Misc. Rep. 450, 22 N. Y. Supp. 1076, holding 
 such real estate under the doctriue taxable, as against direct heirs, al- 
 though the act of 1S92 (chapter 399, §§ 1, 2) plainly exempts such real 
 estate from taxation. 
 
 37 in re Curtis, 142 N. Y. 221, 36 N. E. 887. 
 
 ss in re Raymond, N. Y. Law J. Nov. 9, 1894. 
 (154)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 46 
 
 of equitable conversion, be considered real estate. It is a 
 legacy of money, and taxable. 39 
 
 It has been held, however, that an infant's share of the 
 proceeds of a partition sale of land is taxable as personal 
 property, under the New York law of 1892/° which exempts 
 from taxation property passing to certain lineal heirs, "un- 
 less it is personal property of the value of $10,000 or more, 
 in which case it shall be taxable." 41 
 
 The doctrine in New York conflicts to some extent with 
 that in Pennsylvania, where it is held that, where the will 
 of a decedent directs that real property situated abroad 
 shall be converted into personalty, it may be taxed by the 
 laws of decedent's domicile, as the tax is in reality consid- 
 ered as being imposed upon the proceeds passing under 
 the will. 42 The same rule was followed in a later case, 43 
 where there was real estate of testator in other states, 
 which he directed his executors to sell, and the proceeds 
 to be divided among persons and objects at the domicile; 
 and it was held that the direction to sell converted the real 
 estate and its proceeds into personalty, and they were liable 
 to taxation. 
 
 But there are exceptions to the rule. And where a tes- 
 tator directs that real estate situated in another state shall 
 be sold after the death of his wife, and that the proceeds 
 
 39 Sherrill v. Christ Church (1S90) 121 N. Y. 701, 25 N. E. 50; revers- 
 ing 55 Hun, 472, 8 N. Y. Supp. 80G, and citing Catlin v. Trustees of 
 Trinity College, 113 N. Y. 133, 20 N. E. 864. 
 
 40 Chapter 399, § 2. 
 
 4i In re Stiger (Surr.) 28 N. Y. Supp. 163. 
 
 42 Miller v. Com., Ill Pa. St. 321, 2 Atl. 492, followed in Re Wil- 
 liamson's Estate (1893) 153 Pa. St. 508, 26 AU. 246; Id., 143 Pa. St. 
 150, 22 Atl. 836. See note to this case by W. H. Page, Esq., in 32 
 Am. Law Reg. (N. S.) 472. See 48 Leg. Int. 428; 49 Leg. Int. 106; 
 In re Howard, 5 Dem. Sur. 486; In re Wheeler's Estate (Surr.) 22 N. 
 Y. Supp. 1076. 
 
 4 3 in re Williamson's Estate, supra; Mitchell, J., dissenting. 
 
 (155)
 
 § 46 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 thereof shall be invested in mortgages in such state, the 
 proceeds are not subject to taxation in Pennsylvania, even 
 if the interests of the parties in remainder vest in them, at 
 testator's death, as personalty. 44 Ashman, J., said (page 
 183): "The testator was domiciled in this state at his 
 death, and the real estate which he directed, by his will, to 
 be sold, is situate, part of it in New Jersey, and most of it 
 in Missouri. The direction to sell covered these lands but 
 it was operative only at the death of the widow, — an event 
 which has now happened. If, during her life, the lands re- 
 tained, as against the commonwealth, their original char- 
 acter, they were beyond the reach of the taxing power of 
 this state. 45 If the direction to sell had been immediate, 
 as in Ke Williamson's Estate, 46 or, which is the same thing, 
 if the exercise of the power was extended at the discretion 
 of the executor, and in the interest of the estate, for three 
 years after the death, as in Miller v. Com., 47 then, under 
 the ruling in both of those cases, the estate which passed 
 from the testator would be personalty, and would be liable 
 to the tax. In the case in hand, the estate which passed 
 under the will was a freehold, and its situs was beyond the 
 commonwealth; and neither its character nor its situs 
 was possible of change during the life of the first taker. 
 * * * The fund in Williamson's Estate and Miller v. 
 Com., supra, was to be brought within this jurisdiction; and 
 it had become literally, in the words of the act, an estate 
 passing from the testator, within the commonwealth. The 
 direction here is that it shall be withheld from transmis- 
 sion into this commonwealth, and shall be invested in mort- 
 gages and real estate in St. Louis. It can hardly be said, 
 
 44 In re Hale's Estate (1893) 161 Pa. St. 181, 28 Atl. 1071, 14 Pa. 
 Co. Ct. R. 220, and 3 Pa. Dist. R. 84. 
 4 5 Citing Com. v. Coleman, 52 Pa. St. 468. 
 4c 153 Pa. St. 521, 26 Atl. 246. 
 4 7 ill Pa. St. 321, 2 Atl. 492. 
 (15G)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 16 
 
 in face of this unqualified injunction of the testator, that 
 the fund follows the person of the owner, and, while it is 
 secured upon real estate in Missouri, is nevertheless, by a 
 legal fiction, transferred into Pennsylvania. To accede to 
 this would compel us to hold that the substance of property 
 may be taxed in one state, and its shadow in another, — a 
 species of phantom legislation which, we believe, has not 
 yet been recognized by the courts. * * * It follows 
 from all this that, whether it bears the impress of realty or 
 personalty, the estate is not subject to the imposition of the 
 tax." 4? 
 
 A mere authority to the executors, however, to sell such 
 foreign real estate, without any positive direction to that 
 effect contained in the will, does not warrant the taxing of 
 the proceeds, notwithstanding that the executors bring 
 them within the state, and mix the proceeds with other 
 money belonging to the estate. 49 
 
 The court said : 50 "We must consider the case as if this 
 Minnesota land had been all the estate the testator had, 
 and as if it had been sold under the power, and the pro- 
 ceeds distributed abroad. Surely, the bringing them into 
 this state, and depositing them in the bank account of the 
 executors, along with other funds of the estate, can make 
 no difference. The amount is certain, and they needed no 
 earmark to distinguish them from other money of the tes- 
 tator. In re Hood's Estate 51 shows clearly that if the prop- 
 erty is not liable to tax at the death of the testator, wher- 
 
 48 As to taxation of real property in Pennsylvania as against non- 
 residents, eta, see In re Coleman's Estate (1893) 159 Pa. St. 231, 28 
 Atl. 137; In re Small's Estate, 151 Pa. St. 1, 25 Atl. 23, 28. 
 
 49 Drayton's Appeal, 61 Pa. St. 172; Com. v. Coleman, 52 Pa. St. 46S; 
 In re Hood's Estate, 21 Pa. St. 106. 
 
 so Drayton's Appeal, supra. 
 6i 21 Pa. St. 106. 
 
 (157)
 
 § 46 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 ever it is, the bringing of it into the state does not make 
 it so." The domicile of any one is presumed to continue 
 until it is changed by acquiring a domicile elsewhere. No 
 temporary sojourn in a foreign country will effect such 
 change. 52 
 
 So the declaration of a decedent in his will, made five 
 years before the tax was imposed, that he was a resident 
 of New York, is controlling, in the absence of positive proof 
 to the contrary. 53 
 
 Under the acts of congress, it was held that where the 
 testator had abandoned his residence in this country, and 
 taken up a foreign domicile, the legacies provided for in his 
 will were not subject to the tax, but upon the express 
 ground that there was no intention to tax nonresident es- 
 tates. 54 
 
 But under the English law the estates of English sub- 
 jects dying abroad, where they intended making their domi- 
 cile, are liable to the legacy tax, unless there is evidence 
 also showing that they had actually obtained a foreign 
 domicile at the time of death. 55 
 
 And, notwithstanding such change of domicile is effect- 
 ed, in such event certain estates may be, nevertheless, liable 
 to succession duty. 56 
 
 52 As to what constitutes such change, see In re Hood's Estate. 21 
 Pa. St. 106. 
 
 53 in re Hughes, N. Y. Daily Reg. July 27, 1889. 
 
 54 TJ. S. v. Morris, 27 Fed. 341; U. S. v. Hunnewell, 13 Fed. 617, 
 and note, page 618; San Francisco v. Mackey, 22 Fed. 602. 
 
 55 Udny v. Udny (1869) L. R. 1 H. L. Sc. 441; Attorney General v. 
 Dunn, 6 Mees. & W. 526; Attorney General v. Napier, 6 Exch. 217; 
 Hamilton v. Dallas, L. R. 1 Ch. Div. 257; Attorney General v. Wahl- 
 statt, 3 Hurl. & C. 374; In re Too tail's Trust, L. R. 23 Ch. Div. 532; 
 In re Capdevielle, 2 Hurl. & C. 985. 
 
 56 Attorney General v. Wahlstatt and In re Capdevielle, supra. 
 
 (158)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 4.7 
 
 § 47. Nonresident Decedents, Their Heirs and 
 Legatees. 
 
 (a) The English Rule, " Mobilia Sequuntur Personam." 
 
 We have already seen B7 that two statutes in England 
 regulate the duty or tax upon gifts, legacies, and succes- 
 sions. While these statutes were evidently meant to, and 
 do, cover almost every conceivable form of transfer, whether 
 inter vivos, or by will or intestacy, curiously enough, both 
 of these enactments — especially the legacy act — have been 
 found to be most incomplete and defective, so far as the 
 liability of the personal property within English territory 
 of nonresident and alien decedents is concerned; and not- 
 withstanding it is conceded, in cases involving such liabil- 
 ity, that parliament has the undoubted power to impose 
 these taxes upon the estates of such foreign decedents, 58 
 yet, by force of a construction placed upon these statutes 
 under the fiction of law, the intention on the part of the 
 legislature to tax such estates under the legacy act has 
 been denied by all the judges in the house of lords. 59 
 
 On the other hand, under the succession act, while, with 
 respect to simple legacies, the same rule has been adopted, 
 personal estates held in trust in England by English trus- 
 tees, subject to local courts, have been taxed, notwithstand- 
 ing all the parties were aliens. 60 
 
 ' 67 Chapter 1. 
 
 68 Wallace v. Attorney General, L. R. 1 Ch. App. 1, per Lord Chan- 
 cellor Cranworth; In re Badart, L. R. 10 Eq. 288. 
 
 69 Thompson v. Advocate General, 12 Clark & F. 1; overruling At- 
 torney General v. Cockerill, 1 Price, 165; Attorney General v. Beet- 
 son, 7 Price, 560. And see these cases criticised in State v. Dalryni- 
 ple, 70 Md. 294, 17 Atl. 82; Alvany v. Powell, 2 Jones, Eq. 51; In 
 re Clark's Estate (Surr.) 9 N. Y. Supp. 444. 
 
 60 in re Lovelace, 4 De Gex & J. 340; In re Wallop's Trust, 1 De 
 Gex, J. & S. 656. 
 
 (159)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 The result of a construction which thus exempted for- 
 eign estates in England from the tax under the legacy act, 
 arising from a strict adherence to the maxim, "Mobil ia se- 
 quuntur personam," and the relaxation of the rule under 
 the succession act, has obviously been to cause confusion 
 and a want of harmony among the cases under these stat- 
 utes, and, as we shall hereafter see, has provoked judicial 
 criticism both in that country 61 and in America, where, in 
 many instances, these cases have been substantially re- 
 jected as authorities. 62 
 
 Under the legacy act, it was originally held that legacies 
 left by a person domiciled in a foreign country, where the 
 will was proved and administration of the estate had, if 
 remitted to England, to the legatees, were liable to the tax, 
 upon the theory that there was a new administration 
 there. 63 
 
 The principle announced in the earlier cases under the 
 legacy acts, however, was not strictly followed where the 
 assets of a foreign estate were brought into the kingdom 
 after decedent's death, to pay legatees, or for any other pur- 
 pose; for the court held that it was not liable, upon the 
 
 ei Lyall v. Lyall (1872) L. R. 15 Eq. 1; criticising Wallace v. At- 
 torney General, supra. 
 
 ea State v. Dairy mple, 70 Md. 294, 17 Atl. 82; Alvany v. Powell, 2 
 Jones, Eq. 51; In re Clark's Estate (Surr.) 9 N. Y. Supp. 444; In re 
 Romaine, 127 N. Y. 86, 27 N. E. 759; 48 Phila. Leg. Int. 265. But 
 see In re James, 144 N. Y. 6, 38 N. E. 961; In re Phipps, 77 Hun, 
 325, 28 N. Y. Supp. 330; In re Vinot's Estate (Surr.) 7 N. Y. Supp. 
 517. See In re Enston, 113 N. Y. 183, 21 N. E. 87; Pullman's Palace 
 Car Co. v. Pennsylvania (1891) 141 U. S. 18, 22, 11 Sup. Ct. 876, af- 
 firming 107 Pa. St. 156. 
 
 63 Attorney General v. Cockerill, 1 Price, 165; Attorney General 
 v. Beetson, 7 Price, 819. See In re Alexander's Estate, 3 Pa. Law J. 
 R. (Clark) 87, *448; In re Romaine, supra. But probate duty, it was 
 held, would not have been payable. Attorney General v. Hope (1830) 
 1 Cromp., M. & R. 520; Attorney General v. Napier (1851) 6 Excb. 217; 
 Forbes v. Steven, L. R. 10 Eq. 186. 
 (160)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 grounds stated by Lord Cottinham, — that the act referred 
 merely to persons and wills and personal estates within the 
 limits of the kingdom. 64 
 
 None of these cases made the distinction "between domi- 
 cile, residence, or situs 65 until 1830, when 66 the doctrine 
 was first broached that the true criterion whether the par- 
 ties were liable to legacy duty depended upon the fact 
 whether the testator, at the time of his death, was domi- 
 ciled in England, and the maxim that the personal property 
 followed the person of the owner was adopted. 67 
 
 Finally, in 1845, the house of lords declared, applying this 
 maxim in its full force, that an English subject domiciled 
 in a British colony, who was at the time entitled to a debt 
 due in Scotland, and whose administrators took out letters 
 in that country, collected the debt, and paid the legatees 
 with the proceeds in the latter country, was not liable to 
 legacy duty. 68 
 
 All the judges agreed that the statute, notwithstanding 
 its general words, "every legacy given by any will or testa- 
 mentary instrument of any person," was limited, and did 
 not extend to the will of any person who at the time of his 
 death was domiciled out of Great Britain, whether the as- 
 sets were locally situate within England or not, and that 
 the debt only formed part of the personal property of the 
 testator, and that the liability to the duty did not depend 
 on the executor proving the will in England, nor upon his 
 administration there, but the question, according to the 
 
 64 Arnold v. Arnold, 2 Mylne & C. 270; Attorney General v. Forbes, 
 2 Clark & F. 48; Attorney General v. Jackson, 8 Bligh, 15. But see 
 Attorney General v. Campbell (1872) L. R. 5 H. L. 524. 
 
 6 5 Attorney General v. Napier, 6 Excb. 217. 
 
 6 6 in re Ewing, 1 Cromp. & J. 151; following Bruce v. Bruce, 2 
 Bos. & P. 229. See, also, In re Bruce, 2 Cromp. & J. 436. 
 
 67 Attorney General v. Napier, supra; Thomson v. Advocate Gen- 
 eral, 13 Sim. 153, 12 Clark & F. 1. 
 
 68 Thomson v. Advocate General, 12 Clark & F. 1. 
 
 LAW INHER. 11 (161)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 lord chancellor, turned upon the meaning of the statute 
 limiting its operation to Great Britain. 60 
 
 So far as this doctrine applied to a British subject, Lord 
 Brougham, 70 who seemed to have entertained doubts upon 
 the question, said, "I believe that if the chancellor of the 
 exchequer, who introduced this bill into parliament, had 
 been asked his opinion, he would have been a good deal 
 surprised to hear that he was not to have his legacy duty 
 on such a fund as this, where the testator was a British- 
 born subject, and had merely acquired a foreign domicile"; 
 and he observed that the doctrine of domicile was of recent 
 growth, and that neither the legislature nor the judges 
 thought much of it 
 
 As a necessary consequence or converse of this rule, it 
 was held that where a testator died domiciled in England, 
 though residing temporarily abroad at the time of death, 
 the duty was payable on his personal estate, though situat- 
 ed abroad. 71 
 
 So the legacy duty was held payable upon the share of a 
 deceased partner — a domiciled Englishman — in the pro- 
 ceeds of freehold property abroad, used there for the pur- 
 poses of the partnership, and forming an asset thereof, upon 
 the ground that, as between the partners, the real property 
 was, in law, considered as personalty. 72 
 
 The same rule was subsequently considered and applied 73 
 with reference to the succession duty, 74 where there were 
 
 69 12 Clark & P. 20. 
 
 7 12 Clark & F. 28. 
 
 7i Attorney General v. Napier, 6 Exch. 217; Lord Cranworth, In 
 Wallace v. Attorney General, L. R. 1 Ch. App. 1. See, also, Attor- 
 ney General v. Dunn (1S40) 6 Mees. & W. 526; In re Coales (1S41) 
 7 Mees. & W. 390; Arnold v. Arnold, 2 Mylne & C. 256. 
 
 72 Forbes v. Steven (1870) L. R. 10 Eq. 178; Custance v. Brad- 
 shaw, 4 Hare, 315. 
 
 73 Wallace v. Attorney General, supra. 
 
 74 16 & 17 Vict. c. 51. 
 
 (102)
 
 •Cll. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 legacies payable under the will of a foreigner to legatees in 
 England, the estate there consisting both of real and per- 
 sonal property in the hands of English executors. Lord 
 Chancellor Cranworth, in holding that there was no inten- 
 tion to tax such estate, and referring to certain practical 
 difficulties in the way of such taxation, said: "The statute 
 was passed only about eight years after the decision of the 
 house of lords in Thompson v. Advocate General, 76 and 
 when the nonliability to legacy duty of legatees under the 
 will of persons not domiciled in this country had been fully 
 established after having for a long time previously given 
 rise to much discussion. I can hardly think that the legis- 
 lature intended by a side wind, as it were, and without any 
 preamble of its intention, to do what, without exciting at- 
 tention, would practically operate as a reversal of that 
 which, after frequent discussions in the different courts, had 
 established the rights of persons claiming as legatees under 
 foreign wills. Parliament has, no doubt, the power of tax- 
 ing the successions of foreigners to their personal property 
 in this country; but I can hardly think that we ought to 
 presume such an intention, unless it is clearly stated." 7<J 
 
 But what would seem to be a wide departure from the 
 rule of domicile, as originally declared, and as conflicting 
 with this case, had been previously made in several deci- 
 sions, and the court was compelled to declare that its deci- 
 sion did not conflict with these cases. 77 
 
 Hence, under the succession act, an exception was estab- 
 
 75 12 Clark & P. 1. 
 
 76 To same effect, In re Enston's Will, 113 N. Y., at page 181, 21 N. 
 E. 87, and In re Tulane, 51 Hun, 213, 4 N. Y. Supp. 36, both of which 
 were decided under the New York act of 1SS5; In re Romaine, 127 
 N. Y. 86, 27 N. E. 759. See In re James, 144 N. Y. 6, 38 N. E. 961; 
 In re Phipps, 77 Hun, 325, 28 N. Y. Supp. 330. 
 
 77 See In re Lovelace (1870) 4 De Gex & J. 340; In re Wallop's 
 Trust (1S64) 1 De Gex, J. & S. 656. 
 
 (163)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 lished, as regards a class of cases in which personal prop- 
 erty was held in trust, or under marriage settlements, by 
 English trustees, subject to English courts, notwithstand- 
 ing, in some instances, all the beneficiaries were aliens re- 
 siding or dying abroad, the mere legal title being vested in 
 the trustees. And it was held that the property in England 
 was liable to the succession tax, though not to the legacy 
 duty. 78 
 
 In Re Cigala, where the exception was followed, Jessel, M. 
 B., said: "On what ground is it contended that no duty 
 is payable? It is said that the English government does 
 not tax foreigners, but only Englishmen. As a proposition 
 of law, I am not prepared to assent to that. There are very 
 many cases in which the English government does tax for- 
 eigners. We have a very familiar instance in the case of 
 a foreigner with a British domicile dying intestate as to 
 personal estate, leaving foreign next of kin, or dying testate 
 as to personal property, and giving the whole of it to for- 
 eigners. There the next of kin or residuary legatee pays 
 duty out of the property, though the personal property in 
 question may be situate abroad, the right to the property 
 being the right of the testator or intestate; for, according 
 to the rule of law, 'Mobilia sequuntur personam,' the right 
 to the property is a right governed by the domicile of the 
 testator or intestate. In that case it is quite clear that a 
 foreigner is taxed by the English law, though the property 
 is actually situated abroad ; and therefore it is not true, as 
 a universal rule, that English legislation does not tax for- 
 eigners." 
 
 7 8 in re Lovelace, supra; In re Wallop's Trust, supra. See, also, In 
 re Cigala, 7 Ch. Div. 356; Attorney General v. Fitzjohn (1857) 2 Hurl. 
 & N. 465; Lyall v. Lyall (1872) L. R. 15 Eq. 1, criticising Wallace r. 
 Attorney General, L. R. 1 Ch. App. 1; In re Badart, L. R. 10 Eq. 
 288. See, also, Attorney General v. Campbell (1S72) L. R. 5 H, L. 
 524; In re Smith's Will (1SG4) 12 Wkly. Rep. 933. 
 (164)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 The doctrine thus established under the succession act, 
 though more in accordance with reason and justice, has 
 been criticised as being in conflict with the rule announced 
 under the legacy act. "I must state," says Romilly, M. R., 70 
 "that it appears to me that the distinction drawn between 
 the two statutes is extremely thin, and that the arguments 
 against legacy duty, as stated in Thompson against Advo- 
 cate General, 80 apply with equal force to the words of this 
 statute, as regards, at all events, property locally situated 
 abroad; and it is to be remembered that that case was not 
 heard ex parte, but was twice argued before the house of 
 lords, and that it was not only the opinion of that tribunal, 
 consisting of Lords Lyndhurst, Brougham, and Campbell, 
 but it was so after taking the opinion of Chief Justice Tin- 
 dal and seven other judges." 
 
 And recently it has been adjudged that the personal 
 property bequeathed by a foreigner not domiciled in Eng- 
 land, while not in the first instance liable to legacy or suc- 
 cession duty, becomes liable where the executor directed to 
 collect foreign property invested in England has discharged 
 the duty imposed upon him, and any subsequent devolution 
 of it is liable to succession duty, though the party on whom 
 it may devolve be, like the testator, domiciled abroad, and 
 that the liability to legacy duty of real estate in England 
 is not affected by domicile. 81 
 
 And the rule has recently been strongly reiterated in 
 England, under the legacy act, by Mr. Justice Chitty, that 
 the question of liability to the duty depends solely upon 
 that of domicile of the testator or intestate at the time of 
 death, and that the circumstance that the personal prop- 
 
 7 9 Lyall v. Lyall (1872) L. R. 15 Eq. 1. 
 
 so 12 Clark & F. 1. 
 
 si Chatfield v. Berchtoldt, L. R. 7 Ch. App. 192; Attorney General 
 v. Campbell (1872) L. R. 5 H. L. 524. See, also, In re Badart, L. R. 
 10 Eq. 28S. 
 
 (165)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 erty was locally situate in that country, or sent there to be 
 paid to legatees, was immaterial, and that the fact that the 
 will was not proved in England made no difference when 
 the domicile was English. 82 
 
 So English subjects dying abroad are liable to the legacy 
 tax, unless it clearly appears that they had an actual domi- 
 cile in a foreign state at the time of death. 83 
 
 And a foreigner acquiring a domicile in England becomes 
 liable to the duty. 84 
 
 Under the succession act, the word "property" has been 
 held to include stocks and shares in foreign governments 
 transferable abroad, the certificates for which were merely 
 held in England by trustees. 85 
 
 Under the probate duty act, such foreign bonds and se- 
 curities as are marketable commodities in England, or pass 
 by delivery from hand to hand, are liable to duty, but the 
 rule is different where the stocks are registered in foreign 
 countries. 86 
 
 (b) Application of the Rule in America. 
 
 We have already discussed the question as to the power 
 of the state to impose succession or legacy taxes upon prop- 
 erty within its jurisdiction passing by will or intestate 
 
 82 in re Tootal's Trusts, 23 Ch. Div. 532. See In re Strong (Aug., 
 1894) 17 N. J. Law ,T. 234. 
 
 83 Udny v. Udny (1869) L. R. 1 H. L. Sc. 441; Attorney Gen- 
 eral v. Dunn, 6 Mees. & W. 526; Attorney General v. Napier, 6 
 Exch. 217; Attorney General v. WaMstatt, 3 Hurl. & C. 374; In re 
 Capdevielle, 2 Hurl. & C. 985; In re Tootal's Trusts, 23 Ch. Div. 532. 
 
 84 As to what facts are sufficient to show a change of domicile, see 
 cases cited supra and Hamilton v. Dallas, 1 Ch. Div. 257. 
 
 8 5 in re Cigala, 7 Ch. Div. 356. Contra, In re Enston, 113 N. 
 Y. 181, 21 N. E. 87; Orcutt's Appeal, 97 Pa. St. 185. See In re 
 Romaine, 127 N. Y. 86, 27 N. E. 759; In re James, 144 N. Y. 6, 38 N. 
 E. 961. 
 
 86 Attorney General v. Bouwens, 4 Mees. & W. 171. 
 (166)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 law. 87 And, while the administration and distribution of 
 the personal estate of a nonresident decedent are regulated 
 by the law of the owners domicile, in this country the 
 maxim of "Mobilia sequuntur personam" has not been 
 adopted or applied, in its full force, as against the state, 
 upon questions of taxation; in fact, in some cases it has 
 been entirely rejected, as wholly inapplicable. 
 
 In some states this result has been reached either by a 
 construction placed upon the statutes on grounds of public 
 policy, favoring equality, and to prevent unjust discrim- 
 ination between estates of resident and nonresident de- 
 cedents, and in others by express legislation, and the tax 
 has been imposed upon both the real and personal property, 
 tangible and intangible, 88 of nonresident or alien decedents 
 actually within the taxing state at the time of death, wheth- 
 er or not there be legatees or heirs within the state. In 
 such cases the theory seems to be that for the purposes of 
 this tax the succession is deemed to take place under the 
 law of the taxing state, in reaching which result the courts 
 have leaned towards the actual or real situs of property, 
 having a visible and tangible existence, rather than to the 
 mere domicile of the owner. 
 
 Such would seem to be the law of Maryland, Maine, North 
 
 87 See chapter 2, § 23; State v. Dalrymple, 70 Md. 294, 17 Atl. S2; 
 Wallace v. Attorney General, 1 Ch. App. 1; Alvany v. Powell, 2 Jones, 
 Eq. 51; In re Enston, 113 N. Y. 184, 21 N. E. 87; In re McPherson, 
 104 N. Y. 316, 10 N. E. 685; In re Romaine, 127 N. Y. S6, 27 N. E. 
 759; In re James, 144 N. Y. 6, 38 N. E. 961, affirming 77 Hun, 213, 
 28 N. Y. Supp. 351, and 6 Misc. Rep. 206, 27 N. Y Supp. 2SS; In re 
 Bittinger's Estate, 129 Pa. St. 338, 18 Atl. 132; In re Small's Estate. 
 151 Pa. St. 1, 25 Atl. 23. See note to 32 Am. Law Reg. (N. S.) 365, 
 and cases cited. 
 
 ss See Appendix rV.-VIL, statutes of Connecticut, Maine, Massa- 
 chusetts, and Ohio. 
 
 (167)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 Carolina, New York, Connecticut, Massachusetts, and 
 Ohio. 89 
 
 In Connecticut the tax, under a very comprehensive 
 statute, is expressly applied to tangible and intangible prop- 
 erty. 90 
 
 The state has power to give tangible personal property 
 a special situs for the purpose of taxation. 91 
 
 In North Carolina the question was early considered un- 
 der a statute providing for a tax upon the descent or be- 
 quest of real estate and personal property passing to stran- 
 
 89 Real and leasehold estate in England is taxed irrespective of 
 domicile. Chatfield v. Berchtoldt, 7 Ch. App. 192. 
 
 so Pub. Laws Conn. 1889, c. 180, Appendix VII. No decision seems 
 to have been made as yet construing' this statute. The same pro- 
 visions are contained in the statutes of Massachusetts, Maine, and 
 Ohio. Alvany v. Powell, 2 Jones, Eq. 51; State v. Brevard, Phil. Eq. 
 141; State v. Brim, 4 Jones, Eq. 301; State v. Dalrymple, 70 Md. 294, 
 17 Atl. 82; In re Enston's Will, 113 N. Y. 183, 21 N. E. 87; In re Vinot 
 (Surr.) 7 N. Y. Supp. 517; In re Clark (Surr.) 9 N. Y. Supp. 444; In re 
 Romaine, 127 N. Y. 80-88, 27 N. E. 759. See, also, In re Duckworth 
 (July 3, 1891) 5 N. Y. Law J. 8G4; In re Morejon, Id. 864; In re Bou- 
 don (March 1, 1892) 6 N. Y. Law J. 1322. Regarding stocks and bonds 
 of foreign corporations belonging to nonresident decedents, see In re 
 James (1894) 144 N. Y. 6, 38 N. E. 961, affirming 77 Hun, 213, 28 N. Y. 
 Supp. 351; In re Thomas, 3 Misc. Rep. 388, 24 N. Y. Supp. 713; In re 
 Coming's Estate, 3 Misc. Rep. 160, 23 N. Y. Supp. 285; In re Phipps, 
 77 Hun, 325, 28 N. Y. Supp. 330; Laws N. Y. 1887, c. 713, as amending 
 Laws 1885, c. 483, Appendix, I. See, also, an article by E. H. Blanc, 
 Esq., in 45 Alb. Law J. April 16, 1892, p. 331, entitled "Collateral In- 
 heritance Tax in Connection with Transfer of Stocks and Loans by 
 Foreign Executors and Administrators," reviewing the law of New 
 York. 
 
 9i Cooley, Tax'n (2d Ed.) 23; citing American Coal Co. v. County 
 Com'rs of Allegany Co., 59 Md. 1S5; Mayor, etc., of Baltimore v. 
 Baltimore City Passenger R. Co., 57 Md. 31. 
 (168)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 gers or collateral kindred. In that case 02 the decedent 
 was a foreigner, and died abroad intestate, leaving prop- 
 erty in the state. The authorities under the English legacy 
 act were considered and rejected, and it was held that the 
 principle by which a distinction was made between persona] 
 property and real estate, so that in regard to the former 
 a construction depending upon the domicile of the owner 
 was adopted, was based upon a fiction that had no applica- 
 tion to questions of revenue, but merely applied to the dis- 
 tribution of the personal estates of deceased persons, and it 
 was claimed that it never had any application where the 
 rights of creditors were concerned. 93 
 
 Pearson, J., said: 04 "The notion upon which the princi- 
 ple of the domicile is based — that personal property attends 
 the person, and is where the owner lives — is a mere fiction, 
 and its very restricted application rests upon the comity of 
 nations; but in collecting debts and taxes we must pro- 
 ceed upon the fact, and consider the property as being where 
 it actually is. In other words, the situs of the property 
 must be the governing principle." ° 5 
 
 92 Alvany v. Powell (1854) supra; criticising Thomson v. Advocate 
 General, 12 Clark & F. 1, and other English cases. 
 
 9 3 Story, Confl. Law, 354; Moye v. May, 8 Ired. Eq. 131. 
 
 »4 2 Jones, Eq. 57, supra. 
 
 95 That the fiction is simply based on considerations of comity, see 
 Catlin v. Hull, 21 Vt. 158, approved in Hoyt v. Commissioners, 23 N. 
 Y. 232; Wharf. Priv. Int. Law, §§ 11, 13-297; Green v. Van Buskirk, 
 7 Wall. 150; Hervey v. Locomotive Works, 93 U. S. 664; Lewis v. 
 Woodford, 58 Team 25; Birtwhistle v. Vardill, 5 Barn. & C. 438 151. 
 See the whole question discussed in He Komaine, 127 N. Y. 80, 27 N. E. 
 759; 48 Phila. Leg. Int. 265; criticised in Alb. Law. J. Dec. 12, 1891, 
 p. ITS. See Alb. Law. J. April 16, 1892, p. 331. See In re James, 
 144 N. Y. 6, 38 N. E. 961; Id., 77 Hun, 213, 28 N. Y. Supp. 351; In re 
 Phipps, 77 Hun, 325, 28 N. Y. Supp. 330, affirmed 143 N. Y. 641, 37 N. 
 E. 823 (no opinion). 
 
 (109)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 Precisely the same views have been announced in New 
 York, under general tax laws. 98 
 
 So the question has been considered under the Maryland 
 statute, 97 with reference to the liability of a nonresident de- 
 cedent, who at the time of his death owned certain stocks, 
 bonds, and cash, proceeds of the estate of his deceased 
 brother in that state, and whose legatee — a stranger to the 
 blood — resided outside of the state. McSherry, J., said: 
 "No reason has been assigned, or can be suggested, why the 
 broad language of the statute, and the evident design of the 
 legislature, should be so narrowed and restricted as to ex- 
 empt from this tax the estate of a nonresident actually 
 here, notwithstanding that same property may, for other 
 purposes be treated as constructively elsewhere. If we 
 adopt the view insisted on by the appellees, it will result in 
 a discrimination in favor of nonresidents and against our 
 own citizens, — a discrimination, too, which the legislature 
 certainly never intended to make, and for which no warrant 
 can be found in the plain letter of the statute. In permit- 
 ting property within the state, on the death of its owner, to 
 pass by devise, or descent, or distribution, the legislature 
 has seen fit, where strangers or collateral kindred received 
 it, to exact, as the condition upon which that privilege is 
 granted, the tax in question. The imposition and collec- 
 tion of the tax, therefore, cannot depend upon the mere in- 
 cidental residence of the owner." 98 
 
 The court distinguished the English cases upon the 
 ground that there was no intention, as declared in those 
 
 ss Hoyt v. Commissioners, supra; Graham v. Bank, 84 N. Y. 400. 
 See People v. Coleman, 119 N. Y. 139, 23 N. E. 488; People v. Bar- 
 ker, 135 N. Y. 656, 32 N. E. 252. 
 
 9 7 state v. Dalrymple, 70 Md. 294, 17 Atl. 82. 
 
 98 And see opinion of Woodward, C. J., in Foreign Bond Tax Cases 
 (Pa. Sup. Ct.) 15 Wall. 305, and cases cited supra. 
 (170)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 cases, on the part of the legislature, to impose the tax on 
 the estates of alien or nonresident decedents." 
 
 And the same criticism applies to other cases decided 
 under these statutes, — that there was no intention to tax 
 such nonresident property, and the result in such cases will 
 be found to be predicated solely upon this ground, and the 
 fiction of law thus held applicable. 100 
 
 So the treaty of France with the United States does not 
 relieve citizens of France leaving property here at their 
 death from the New York inheritance tax. The treaty of 
 1853 provides: "In all states of the Union whose existing 
 
 so Citing and reviewing Citizens' Nat. Bank v. Sharp, 53 Md. 521; 
 Orcutt's Appeal, 97 Pa. St. 179; Attorney General v. Hope, 1 Cromp., 
 M. & R. 530; Attorney General v. Cockerell, 1 Price, 165; Attorney 
 General v. Beetson, 7 Price, 5G0; Thomson v. Advocate General, 12 
 Clark & F. 1 ; Wallace v. Attorney General, L. R. 1 Ch. App. 1. 
 
 ioo u. S. v. Hunnewell, 13 Fed. 017; U. S. v. Morris, 27 Fed. 341. 
 See Com. v. Chesapeake & O. R. Co., 27 Grat. 354; Orcutt's Appeal, 
 97 Pa. St. 1S5; Del Busto's Estate, 23 Wkly. Notes Cas. Ill; In re 
 Bacon's Estate, 3 Del. Co. Rep. 603; In re Tulane, 51 Hun, 213, 4 
 N. Y. Supp. 36; In re Enston's Will, 113 N. Y. 181, 21 N. E. 87, 
 where Andrews, J., said that "the fiction must prevail unless there is 
 something in the policy of the statute or its language which shows a 
 different legislative intent." Notwithstanding the ruling in Re Ro- 
 maine, 127 N. Y. SO, 27 N. E. 759, the fiction has been applied to 
 stocks and bonds of foreign corporations within the state belonging 
 to a deceased nonresident, the court holding that, there being no in- 
 tention in the act of 1887 (chapter 713) to tax these securities, the 
 fiction prevailed, and they were presumed to be at the domicile of 
 the owner. In re James (1894) 144 N. Y. 6, 38 N. E. 961, affirm- 
 ing 77 Hun, 213, 28 N. Y. Supp. 351; distinguishing In re Romaine, 
 supra. See elaborate article on the subject in Alb. Law J. April 16, 
 1892, p. 331. This would seem to overrule In re Duckworth (July 3, 
 1891) 5 N. Y. Law J. 864; In re Morejon (July 31, 1891) Id.; In re 
 Bondon (March 1, 1892) 6 N. Y. Law J. 1322. See, also, In re Phipps, 
 77 Hun, 325, 28 N. Y. Supp. 330, affirmed 143 N. Y. 641, 37 N. E. 
 823, on opinion below. But see Hoyt v. Commissioners of Taxes, 23 
 N. Y. 232, and cases supra, page 170. 
 
 (171)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 laws permit it, so long as, and to the same extent as, the 
 said laws shall remain in force, Frenchmen shall enjoy the 
 right of possessing personal and real property by the same 
 title and in the same manner as the citizens of the United 
 States. They shall be free to dispose of it as they may 
 please, * * * by donation, testament or otherwise, just 
 as those citizens themselves; and in no case shall they be 
 subject to taxes on transfer, inheritance or any others, dif- 
 ferent from those paid by the latter, or to taxes which shall 
 not be equally imposed." 101 
 
 (c) The Rule as Applied to Tangible and Intangible Property. 
 
 While the fiction has not been followed in some states, 
 upon grounds of public policy, and has been overthrown in 
 others by statute, it becomes important to notice the dis- 
 tinction which has been made in this country — but which 
 does not seem to exist in England — between tangible and 
 intangible personal property, because out of this distinction 
 has arisen the main conflict and difference in some of the 
 states, under these laws, as to the taxability of what is 
 often termed purely intangible personal property, such as 
 bonds, certificates of stock, notes, mortgages, debts, and 
 the like. In Connecticut, we have seen, the statute ex- 
 pressly includes both tangible and intangible property, but 
 no decision seems to have been made construing this pro- 
 vision. 102 
 
 The same provision is also contained in the statutes of 
 Massachusetts, Ohio, and Maine. 103 
 
 101 In re Bondon (March 1, 1892) 6 N. Y. Law J, 1322. 
 
 102 Pub. Laws Conn. 1889, c. 180, Appendix, VII. The state has 
 power to impose a tax upon a debt due from a resident of another 
 state to a citizen of the taxing state, although the debt is secured by 
 a mortgage upon lands in the state where the debtor resides. Kirk- 
 land v. Hotchkiss, 100 U. S. 498. 
 
 103 See statutes, Appendix, IV.-VI. 
 (172)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 It is not always easy to determine what comes within the 
 definition of the terms "tangible" and "intangible." 104 
 
 In England, under the succession act, the word "proper- 
 ty" includes the shares of stocks of foreign governments and 
 
 104 We give a few cases defining what has been considered tangible 
 and intangible property under legacy and general tax laws where 
 nonresident decedents are concerned: 
 
 (a) Intangible: Debts, i. e. mortgages, railroad bonds, certificates 
 of stock, Foreign Bond Tax Cases, 15 Wall. 300, 324; Kirkland v. 
 Hotchkiss, 100 U. S. 498; San Francisco v. Mackey, 22 Fed. 602; 
 Com. v. Chesapeake & O. R. Co., 27 Grat. 354; Goldgart v. People, 
 106 111. 25; Latrobe v. City of Baltimore, 19 Md. 13; Com. v. Stand- 
 ard Oil Co., 101 Pa. St. 119; bonds and certificates of stock in for- 
 eign corporations, In re Enston's Will, 113 N. Y. 181, 21 N. E. 87; 
 In re James (1894) 144 N. Y. 6, 38 N. E. 961, affirming 77 Hun, 213, 
 28 N. Y. Supp. 351, distinguishing In re Romaine (1891) 127 N. Y. 8S, 
 27 N. E. 759; land directed to be converted into money and dis- 
 tributed, In re Coleman's Estate, 159 Pa. St. 231, 28 Atl. 137; In re 
 Del Busto's Estate, 23 Wkly. Notes Cas. Ill; In re Bacon's Estate, 
 3 Del. Co. Rep. 603; Commonwealth's Appeal, 11 Wkly. Notes Cas. 
 492; Kintzing v. Hutchinson, 34 Leg. Int. 368; government and state 
 bonds and county stock, Orcutt's Appeal, 97 Pa. St. 185; In re Del 
 Busto's Estate, 23 Wkly. Notes Cas. Ill; Commonwealth's Appeal, 
 11 Wkly. Notes Cas. 494; In re Alexander's Estate, 3 Pa. Law J. 
 R. (Clark) 87, *448; chose in action— right to a sum of money 
 or legacy— given by will of a resident to a nonresident decedent not 
 property within the state, In re Phipps (1894) 77 Hun, 325, 28 N. 
 Y. Supp. 330, affirmed 143 N. Y. 641, 37 N. E. 823, mem. 
 
 (b) Tangible property: Debt owing resident of taxing state, Kirk- 
 land v. Hotchkiss, 100 U. S. 498; earnings set apart to pay interest, 
 Michigan Cent. R. Co. v. Collector, 100 U. S. 595; U. S. v. Erie Ry. 
 Co., 106 U. S. 327, 1 Sup. Ct. 223; Com. v. Chesapeake & O. R. Co., 
 27 Grat. 344; bonds, certificates of stock, and money, American Coal 
 Co. v. Commissioners of Allegany Co., 59 Md. 185; City of Baltimore 
 v. Baltimore Passenger R. Co., 57 Md. 31. See Catlin v. Hull, 21 Vt. 
 158, and case cited supra, p. 169; State v. Dalrymple, 70 Md. 294, 17 
 Atl. 82; In re Romaine, supra; Laws N. Y. 1S92 c. 399, § 9; In re 
 Duckworth (July 3, 1891) 5 N. Y. Law J. 864; In re Morejon, Id.; 
 government, state, and municipal bonds, etc., Foreign Bond Tax 
 
 (173)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 corporations within the kingdom which are transferable 
 abroad. 105 
 
 Many of the statutes, by express provision, include the 
 transfer of stocks by foreign executors. Such a statute is 
 enforced in Pennsylvania, 106 but a similar provision was 
 held unenforceable in New York, under the act of 1885. 107 
 
 As we have seen, upon grounds of public policy, that 
 the taxing state ought not to discriminate against its own 
 citizens, in favor of nonresidents, and in some states, by ex- 
 press enactment, both tangible and intangible property 
 within the state have been held liable to this tax; and so, 
 under general tax laws, taxes have been imposed where 
 such intangible property, such as bonds, stocks, mortgages, 
 and other choses in action, was actually within the taxing 
 state at the time of death, in the hands of an administra- 
 
 Cases, 15 Wall. 324; In re Cigala, 7 Ch. Div. 356; In re Ewing, 1 
 Cromp. & J. 151; bank and other notes, Foreign Bond Tax Cases, 
 15 Wall. 324; Osgood v. Maguire, 61 N. Y. 529; interest of a non- 
 resident deceased partner in a copartnership actually within the 
 state, consisting of land, stocks, bonds, and accounts, In re Small's 
 Estate, 151 Pa. St. 1, 25 Atl. 23, 28; In re Coleman's Estate, 159 
 Pa. St. 231, 28 Atl. 137; mortgages upon lands, In re Romaine, supra: 
 In re Coming's Estate (Surr.) 23 N. Y. Supp. 285. 
 
 105 per Jessel, M. R., in Re Cigala (1878) 7 Ch. Div. 351. See At- 
 torney General v. Bouwens' Settlement Trusts, 4 Mees. & W. 171. 
 But in Re Enston's Will, 113 N. Y. 181, 21 N. E. 87, where the 
 maxim was applied, the court said: "The certificates are in no gen- 
 eral sense property. They simply represent interest in the corpora- 
 tions," etc. In re James, 144 N. Y. 6, 38 N. E. 961; Orcutt's Appeal, 
 97 Pa. St. 179. See 45 Alb. Law J. April 16, 1892, p. 331. 
 
 ice Scott, Intest. Laws (Pa., 1871) p. 547. Contra, Kintzing v. 
 Hutchinson, 34 Leg. Int. 365, Fed. Cas. No. 7,834. 
 
 lot in re Enston, 113 N. Y. 180, 21 N. E. 87. Under Act 1887, 
 c. 713, § 11, and Laws 1892. c. 399, § 9, such provision would now 
 seem to be unenforceable. In re Romaine (1891) 127 N. Y. 86, 27 N. 
 E. 759. See the question discussed in 45 Alb. Law J. April 16, 1892, 
 p. 331. See, also, In re Stacey (May 20, 1892) 7 N. Y. Law J. 478. 
 (174)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 tor or executor with ancillary letters, or where such prop- 
 erty was in the hands of a mere agent for collection. 108 
 
 The contrary view of this subject, which is entitled to 
 much consideration, is taken in Pennsylvania; but even in 
 that state the maxim is apparently restricted to intangible 
 
 108 state v. St. Louis Co., 47 Mo. 594; Catlin v. Hull, 21 Vt. 152, 
 cited and approved in Hoyt v. Commissioners, 23 N. Y. 224; People 
 v. Gardner, 51 Barb. 352; Osgood v. Maguire, 61 N. Y. 529; St. Louis 
 v. Wiggins Ferry Co., 40 Mo. 5S0; State v. Dalryinple, 70 Md. 294, 
 17 Atl. 82; In re Clark (Surr.) 9 N. Y. Supp. 444; In re Bomaine, 
 127 N. Y. 80-SS, 27 N. E. 759; In re Vinot (Surr.) 7 N. Y. Supp. 517; 
 In re Cigala, 7 Ch. Div. 351. But see, regarding stocks and 
 bonds of foreign corporations and debts due nonresidents, In re 
 Enston, 113 N. Y. 181, 21 N. E. 87; In re James (1894) 144 N. 
 Y. 6, 38 N. E. 961; Id., 77 Hun, 211, 28 N. Y. Supp. 351; In re 
 Phipps (1894) 77 Hun, 325, 28 N. Y. Supp. 330, affirmed 143 N. Y. 
 641, 37 N. E. 823 (no opinion); San Francisco v. Mackey, 22 Fed. 
 602; Foreign-Held Bond Tax Cases, 15 Wall. 300; Kintzing v. Hutch- 
 inson, 34 Leg. Int. 365, Fed. Cas. No. 7,834; Allen v. Philadelphia 
 Sav. Fund (1879) 7 Reporter, 775, 25 Int. Eev. Rec. 171, Fed. Cas. 
 No. 234; Orcutt's Appeal, 97 Pa. St. 179; In re Del Busto's Estate, 
 23 Wkly. Notes Cas. 111. In the Foreign-Held Bond Tax Cases (1872) 
 15 Wall. 300, it was held by a bare majority of the supreme court 
 (Clifford, Miller, Davis, and Hunt, JJ., dissenting) that the state of 
 Pennsylvania had no power to enforce a property tax upon mere in- 
 terest—a debt— due from a railroad company to bondholders residing 
 abroad, where the bonds were, notwithstanding the bonds were se- 
 cured by mortgage upon property within the state, upon the ground 
 that the interest was a mere debt and intangible; but it is clear 
 from the prevailing opinion that, had the bonds been within the state 
 "separated from the possession of the owners" (page 342), the tax 
 would have been upheld. See this case distinguished in New York, 
 L. E. & W. R. Co. v. Pennsylvania (1893) 153 U. S. 646, 647, 14 Sup. 
 Ct. 952. In People v. Coleman, 119 N. Y. 137, 23 N. E. 4S8, it was 
 held that personal property belonging to a nonresident, in the actual 
 possession of a trustee residing in another state, was not liable to 
 property tax in New York, although two trustees resided there. Such 
 property would have been taxable if within the state. People v. 
 Barker, 135 N. Y. 656, 32 N. E. 252. 
 
 (175)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 property, and personal property of a tangible nature is 
 subject to taxation under the law. The position seems to 
 be somewhat inconsistent, 109 as, by express provision of the 
 statute, it is made applicable to transfers of shares of stock 
 within the state by foreign executors. 110 
 
 In Orcutt's Appeal, where decedent (a foreigner) died tes- 
 tate, it was said that the act was intended to embrace only 
 personal property of a tangible nature actually situated or 
 used for business purposes within the commonwealth, and 
 not to mere certificates of indebtedness, such as government 
 bonds, whose situs necessarily followed the domicile of the 
 owner. "By the very words of the act," said the court, "the 
 tax is not only limited to such estates as have a situs within 
 the commonwealth, and also pass to collateral heirs or leg- 
 atees, but it is further restricted in defining the mode in 
 which they shall pass, viz. 'estates being within this com- 
 monwealth and passing from any person either by will or 
 under the intestate laws thereof.' It is clear, therefore, 
 that estates not passing by a will that is operative within 
 the state, or under the intestate laws thereof, * * * are 
 not within the purview of the act. Devolution, either un- 
 der the intestate laws of the commonwealth, or under a 
 properly executed will, is clearly made a condition of lia- 
 bility to the tax." 
 
 The court conceded, however, that the will in that case 
 was "sufficient to pass personal property" in the state. It 
 was further said that it did not appear whether any part 
 
 109 See Orcutt's Appeal, 97 Pa. St. 1S5, 1S6, distinguished and re- 
 stricted in Re Romaine, 127 N. Y. 80-86, 27 N. E. 759; In re Small's 
 Estate, 151 Pa. St. 1, 25 Atl. 23; 32 Am. Law Reg. (N. S.) 3G5, and 
 note. 
 
 no Scott, Intest. Laws (Pa., 1871) p. 547. Contra, Kintzing v. 
 Hutchinson, 34 Leg. Int 365, Fed. Cas. No. 7,834. See In re Enston's 
 Will, 113 N. Y. 180, 21 N. E. 87; Alb. Law J. April 16, 1892, p. 331, 
 and cases supra. 
 (176)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 of the fund would go to the collaterals until after final ad- 
 ministration and distribution of the estate. 
 
 This rule has been followed in that state as to bonds and 
 other securities, with the extreme result of exempting, not 
 only government bonds, but bonds and stocks issued under 
 the laws of the state, and actually within the state. 111 
 
 Hence, bonds belonging to a nonresident decedent, but 
 within the state, in an agent's hands, at the time of death, 
 are not liable. 112 
 
 So mortgages upon real estate in the state, held as col- 
 lateral to bonds owned by a decedent domiciled in another 
 state, are not liable. 113 
 
 An interesting question recently arose in Coleman's Es- 
 tate, where decedent, a nonresident, owned lands in Penn- 
 sylvania, and directed his executors to "convert the same 
 into money, and apply the proceeds" to the payment of leg- 
 acies to collateral heirs. It was held that the proceeds of 
 such lands were not liable to taxation in that state. 114 
 
 The court (Hawkins, P. J.) said: 
 
 "The solution of the question involved in this case turns 
 mainly upon the application of the maxim that the situs 
 
 in In re Del Busto's Estate, 23 Wkly. Notes Cas. Ill; Common- 
 wealth's Appeal (Pa. Sup.) 11 Wkly. Notes Cas. 494; Bacon's Estate, 
 3 Del. Co. Rep. 603; Kintzing v. Hutchinson, 34 Leg. Int. 3G5, Fed. 
 Cas. No. 7,834. See Com. v. Smith, 5 Pa. St. 142; In re Alexander's 
 Estate, 4 Pa. Law J. R. (Clark) 87, *448; Citizens' Nat. Bank v. Sharp, 
 53 Md. 531; In re Short's Estate, 16 Pa. St. 63; In re Hood's Estate, 
 21 Pa. St. 106; In re Enston, 113 N. Y. 183, 21 N. E. 87; In re Tu- 
 lane, 51 Hun, 213, 4 N. Y. Supp. 36. In Foreign-Held Bond Tax 
 Cases, 15 Wall. 300, the court held that state and municipal bonds 
 were tangible property, and classed railway and other securities as 
 intangible. 
 
 112 Commonwealth's Appeal, 11 Wkly. Notes Cas. 494. 
 
 us Bacon's Estate, supra. 
 
 H4 In re Coleman's Estate (Commonwealth's Appeal; 1893) 159 Pa. 
 St. 231, 28 Atl. 137, 23 Pittsb. Leg. J. (N. S.) 211. 
 
 LAW INHER. — 12 (177)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 of personal property follows the domicile of the owner. It 
 was said in In re Small's Estate 115 that, as a general rule, 
 intangible personal property of a nonresident, such as 
 bonds, mortgages, and other choses in action, is governed, 
 as to its situs, by the fiction of law above noticed, and hence 
 such property is not subject to collateral inheritance taxa- 
 tion under the act of 1S87, because not situate in this state. 
 
 "Some species of personal property, it is true, when used 
 in carrying on business, or for other particular purposes, 
 may have an actual, as distinct from a legal, situs, but the 
 local character of the use takes it out of the operation of the 
 rule. And of this Small's Estate is, of itself, a striking il- 
 lustration. Not only was the 'thing' given employed in a 
 business which was, by its nature, localized, but the mani- 
 fest intent of the testator was that it should remain in this 
 state. The bequest was specifically of testator's interest, 
 including all the property, real and personal, notes, stocks, 
 bonds, and accounts, in a limited partnership organized un- 
 der the laws, and having its principal place of business in 
 this state. 
 
 "The value of the property depended largely upon its con- 
 tinuance here. There was no reason for its conversion and 
 transmission to the testator's domicile, and it was given to 
 the surviving partners, as such, in specie. The facts plainly 
 made an exception to the general rule. The actual situs was 
 here, and liability to the tax followed. It is urged on be- 
 half of the commonwealth that this case rules the present, 
 but the facts differ in material respects. The gift here was 
 of an interest in a fund whose distribution belonged to the 
 domicile of the donor. * * * 
 
 "The thing given was not lands, but an interest in its pro- 
 ceeds. If bonds, notes, stocks, and mortgages be intangible 
 personal property, surely this is." 116 
 
 In some of the earlier cases in the state, where the doc- 
 
 11 b 151 Pa. St 1, 25 Atl. 23. ne In re Coleman's Estate, supra. 
 (178)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 trine of the domicile does not seem to have been deemed 
 material, such property was held liable, though the decedent, 
 who at the time of his death was domiciled abroad, but pre- 
 vious to that time had been domiciled in Pennsylvania, left 
 a will describing himself of Philadelphia, and his will pro- 
 bated there. 117 
 
 So, in another case, 118 it was held that county and state 
 stock belonging to a decedent domiciled abroad at the time 
 of his death were taxable, upon the ground that there was 
 a new administration in the state, and the funds were there. 
 This was the early doctrine of the English courts. 119 
 
 Recently it has been held in Pennsylvania that the inter- 
 est of a nonresident deceased member of a limited partner- 
 ship association, consisting of shares of stock, etc., in the 
 company doing business in the state, is liable to taxation, 
 where the real and personal property of the association is 
 situated within the state. 120 
 
 In holding such property taxable, the supreme court adopt- 
 ed the rule laid down in Hoyt v. Com., 121 saying, with refer- 
 ence to the rule of the domicile: "The facts of this case, 
 however, are different, and bring it within the exceptions to 
 the fictitious rule. In the formation, location, etc., of their 
 partnership association, the testator and his brothers evi- 
 dently established the situs of the personal property, which 
 constituted its capital. They organized the association un- 
 
 117 Com. v. Smith, 5 Pa. St. 142, explained in Kintzing v. Hutch- 
 inson, 34 Leg. Int. 365, Fed. Cas. No. 7,834; In re Short's Estate, 16 
 Pa. St. 66; State v. Dalrymple, 70 Md. 294, 17 Atl. 82. 
 
 us Alexander's Estate, 4 Pa. Law J. 87; citing In re Ewing, 1 
 Cromp. & J. 151. 
 
 ii» Attorney General v. Cockerell, 1 Price, 165; Attorney General 
 v. Beetson, 7 Price, 560. See, also, In re Romaine, 127 N. Y. 86, 27 
 N. E. 759; Alvany v. Powell, 2 Jones, Eq. 57. 
 
 120 in re Small's Estate (1892) 151 Pa. St. 1, 25 Atl. 23. See note 
 to this case 32 Am. Law Reg. (N. S.) 364; 11 Pa. Co. Ct R. 1. 
 
 12123 N. Y. 224, 22S. 
 
 (179)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 der the laws of this state, located its principal office and con- 
 ducted its business therein, and thus enjoyed the benefit of 
 the law and protection of the state and local government. 
 In such circumstances, * * * the truth, and not the fic- 
 tion, plainly affords the rule of action. Neither convenience 
 nor justice requires us to resort to the fictitious rule." 
 
 Where decedent, a nonresident of Tennessee, shortly prior 
 to his death, inherited a certain fund from his sister, a resi- 
 dent of that state, which was paid over to decedent's ad- 
 ministrator in the state, and such administrator intended to 
 make a final distribution in Pennsvlvania, held that the fund 
 had a situs in Pennsylvania, and not at the domicile of de- 
 cedent, and so was subject to the tax. 122 
 
 In New York, estates of nonresident decedents within the 
 state were originally held not liable, upon a construction 
 placed upon the statute, it being held that there was no in- 
 tention on the part of the legislature to tax such estates. 123 
 
 The principles adopted by the Pennsylvania courts were 
 substantially applied, and it was held that stocks and bonds 
 in the state, in the hands of an agent, were in no general 
 sense property, and had no situs in the state, and that the 
 policy of the state exempted them from general taxation. 124 
 
 122 Weaver's Estate (1895) 12 Lane. Law Rev. 57. But see In re 
 Phipps (1894) 77 Hun, 325, 28 N. Y. Supp. 330; Id., 143 N. Y. 641, 
 37 N. E. 823. See In re Thomas (1893) 3 Misc. Rep. 388, 24 N. Y. 
 Supp. 713. 
 
 123 in re Enston's Will, 113 N. Y. 179, 21 N. E. 87; In re Tulane, 
 51 Hun, 213, 4 N. Y. Supp. 36. The statute (Laws 1885, c. 483, § 1) 
 imposed the tax "upon all property which shall pass by will, or by 
 the intestate laws of the state from any person who may die seised 
 or possessed of the same while being a resident of the state, or 
 which property shall be within this state." See the subject consid- 
 ered in Alb. Law J. April 16, 1892, p. 331, by E. H. Blanc, Esq. 
 
 124 id., citing Williams v. Board of Supervisors of Wayne Co., 78 
 N. Y. 561. But see Hoyt v. Commissioners of Taxes, 23 N. Y. 224, 
 citing Catlin v. Hull, 21 Vt. 152, and cases supra, page 169. 
 
 (180)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 All the judges, however, did not concur in this result, 
 which was reached by a bare majority; 125 and the dissent- 
 ing opinion of Danforth, J., ably presents the contrary view 
 of the question. The amended statute of 1887, 126 taxing the 
 property of all nonresident decedents, showed the true pol- 
 icy of the state. Under this statute the lower courts held 
 that tangible and intangible personal property of a nonresi- 
 dent within the state were liable to the tax. But until 1891 
 the question, under the amendatory act, never received any 
 consideration by the court of appeals, although incidentally, 
 in considering the law of 1887, all the judges agreed, in the 
 Enston Case, 127 that it was meant to cover the estates of 
 nonresident decedents, but to what extent was left undecid- 
 ed. 128 
 
 This act 129 provided that all property passing by will or 
 by intestate laws of the state, from any person who may 
 die seised or possessed of the same while a resident of the 
 state, or if such decedent was not a resident of the state 
 at the time of death, which property, or any part thereof, 
 shall be within this state, is subject to taxation. Under the 
 act of 1892, 130 this provision is substantially continued. 
 The act confers further jurisdiction by providing 13X that the 
 words "estate" and "property" shall include all property or 
 interest therein whether situated within or without this 
 
 125 Danforth, J., wrote a dissenting opinion. Finch, J., concurred 
 therein, and Ruger, C. J., did not vote. 
 
 126 Laws 1887, Appendix, I. 
 
 127 Supra. 
 
 128 Appendix, I., Laws 1887, § 1, amending Laws 1885, c. 483. And 
 see, also, In re Clark's Estate (Surr.) 9 N. Y. Supp. 444; In re Vinot's 
 Estate (Surr.) 7 N. Y. Supp. 517; In re Romaine, 127 N. Y. 86, 27 
 N. E. 759. See note to this case, 12 Lawy. Rep. Ann. 401, Alb. Law 
 J. April 1G, 1S92, p. 331. 
 
 129 See Appendix, I. 
 
 130 Appendix, I. Laws 1892, c. 399, §§ 1-3. 
 
 131 Laws 1892, § 22. 
 
 (1SI)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 state, over which this state has any jurisdiction for the pur- 
 poses of taxation." 
 
 In 1891 the construction of the act of 1887 came before 
 the court of appeals, Second division, 132 with respect to the 
 liability of a nonresident intestate ; and it was held that the 
 property of such decedent within the state, consisting of 
 stocks and bonds of corporations, kept in a safe-deposit 
 vault, money in savings banks, and mortgages upon real es- 
 tate situated within the state, were liable to taxation. 133 
 
 To the appellant's contention that the property was not 
 within the state, according to the true meaning of the stat- 
 ute, but was presumed to be at the domicile, the court, per 
 Vann, J., said : "The fiction of law that personal estate has 
 no situs away from the person or residence of its owner is 
 done away with, to a limited extent and for a specified pur- 
 pose, and the truth is substituted in its stead as the rule of 
 action. That the legislature had power to do this can hard- 
 ly be questioned. 134 As was said by Judge Story, when writ- 
 ing upon this subject, 'a nation within whose territory any 
 personal property is actually situated has as entire domin- 
 ion over it, while therein, in point of sovereignty and juris- 
 
 132 in re Romaine (1891) 127 N. Y. 86, 27 N. E. 759 (Haight, J., 
 dissenting), affirming 58 Hun, 109, 11 N. Y. Supp. 313; 48 Phila. Leg. 
 Int. 265, 267. See note to 44 Alb. Law J. Dec. 12, 1891, p. 478, en- 
 titled "The Act to Tax Inheritance." See article in 45 Alb. Law J. 
 April 16, 1892, p. 331, entitled "Collateral Inheritance Tax in Con- 
 nection with Transfer of Stocks and Loans by Foreign Executors 
 and Administrators." The Romaine Case was followed in Re 
 Duckworth (July 3, 1891) 5 N. Y. Law J. 864; Re Morejon, 
 Id.; ReBondon (March 1, 1892) 6 N. Y. Law J. 1322. See, also, In 
 re Phipps (1894) 77 Hun, 325, 28 N. Y. Supp. 330, affirmed 143 N. 5. 
 641, 37 N. E. S23, on opinion below; In re James, 144 N. Y. 6, 38 N. 
 E. 961, affirming 77 Hun, 213, 28 N. Y. Supp. 351, where the case of 
 Romaine is distinguished. See, also, note on this case 12 Lawy. Rep. 
 Ann. 401, 27 N. E. 759. 
 
 133 Followed in Re Morejon, supra; Re Bondon and cases supra. 
 is* in re McPherson, 104 N. Y. 306, 10 N. E. 6S5. 
 
 (182)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 diction, as it has over immovable property situated there.' 18B 
 Where the money of a nonresident is invested in this state, 
 as it was by Mr. Roniaine, in the bond and mortgage in ques- 
 tion, and in the deposits made by him in the savings banks, 
 or where the property of a nonresident is habitually kept, 
 even for safety, in this state, we think that the statute ap- 
 plies, both in the letter and spirit. Such property is within 
 this state, in every reasonable sense, receives the protection 
 of its laws, and has every advantage from government, for 
 the support of which taxes are laid, that it would have if it 
 belonged to a resident. We think that a fair construction 
 of the act permits no distinction as to such property, based 
 simply upon the residence of the deceased owner. We have 
 nothing to do with the policy of the statute, as our duty is 
 discharged when we declare its meaning, and apply it to 
 the case in hand. That duty we discharge in this instance 
 by adjudging that succession to the personal property in 
 question lately belonging to Worthington Romaine, a non- 
 resident intestate, but invested or habitually kept by him in 
 this state, is taxable under the collateral inheritance act, in 
 so far as it passed to persons not excepted from its provi- 
 sions." 136 
 
 In this case it did not appear whether or not the bonds 
 and stocks were of foreign corporations. 
 
 But, under a recent ruling of the court of appeals in Re 
 James, 137 stocks and bonds, also, it would seem, in foreign 
 corporations, belonging to the estates of nonresident dece- 
 dents, and actually within the state, are held not liable to 
 taxation under the act of 1887; the court holding that such 
 certificates of stock are mere evidence of title, or of an in- 
 
 135 Citing Story, Confl. Laws, § 550; People v. Tax Com'rs, 23 N. Y. 
 224, and other cases. 
 
 ise Followed in Re Phipps (18&4) 77 Hun, 325, 28 N. Y. Supp. 330, af- 
 firmed 143 N. Y. 641, 37 N. E. 823, mem. 
 
 137 144 N. Y. 6, 38 N. E. 901. 
 
 (183)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 terest in the assets of the corporation, that they were at the 
 domicile of the owner or corporation, and that they were 
 not property, within the meaning of the statute 2 or intended 
 to be taxed thereunder. 138 
 
 In this matter, it appeared that James was a nonresident 
 Englishman, and had the securities referred to above on de- 
 posit within the state, at and prior to his death. While the 
 court conceded that it was the intention of the act of 1887 
 to tax the property of nonresidents within the state, it dis- 
 tinguished In re Romaine; holding there was no intention 
 to tax certificates of stock in foreign corporations, forming 
 part of a nonresident decedent's estate, and that, inasmuch 
 as it appeared that none of the legacies under the will were 
 to be paid out of the assets within the state, no tax could 
 be imposed. 139 
 
 Gray, J., said: 
 
 'In view of the importance of the ruling of the courts be- 
 low upon the question of whether stocks of foreign corpora- 
 tions should be included in the valuation of testator's es- 
 tate, it may be proper to express our judgment further. We do 
 not think it was the intendment of the act of 1887 to reach, 
 for purposes of taxation, any personal property that was 
 not within the state, either in fact, or because of the domi- 
 
 138 in re James, 144 N. Y. 6, 38 N. E. 961; affirming 77 Hun, 211, 
 28 N. Y. Supp. 351; reversing 27 N. Y. Supp. 288 (Suit.); and distin- 
 guishing In re Romaine, supra. 
 
 139 in the supreme court below, it was held that a legacy under the 
 will of a nonresident testator who leaves assets in New York is not 
 taxable under the statute, unless paid out of the assets within the 
 state. In re James (1894) 77 Hun, 211, 28 N. Y. Supp. 351. The 
 appellate court held, however, that it did not lie with the state to say 
 which part of testator's estate should be appropriated to the payment 
 of the legacies, but that the executor had that right, and might pay 
 them out of the foreign estate, and so save the estate here from the 
 payment of a succession tax under the act. Id., 144 N. Y. 6, 3S N. E. 
 961. 
 
 (184)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 cile here of the owner. The reading of the act does not 
 authorize us to construe it as an effort to tax that over 
 which there was no jurisdiction, and it would be highly im- 
 proper to impute to the legislature such an intention. 140 The 
 stocks of foreign corporations, which formed part of the es- 
 tate, were not property, in the legal sense. The share cer- 
 tificates which the testator held represented the interests 
 which he possessed in the corporations which issued them, 
 and the legal situs of that species of personal property is 
 where the corporation exists, or where the shareholder has 
 his domicile. 
 
 "We so held in the Enston Case,* and the act of 1887 
 furnishes no evidence of any intention to change the policy 
 of the law, which has regarded the stocks of foreign corpo- 
 rations as being taxable only in the place of the owner's 
 residence, or in that of the corporations. In the Romaine 
 Case,f nothing was decided to the contrary of this view. 
 The property of the nonresident decedent, in that case, which 
 was held to be liable to taxation, was stated to be a mort- 
 gage upon real estate in the city of New York, deposits in 
 savings banks in that city, and stocks and bonds of differ- 
 ent corporations, but, whether domestic or foreign, it was 
 not made to appear." 
 
 The court also held, on the question of double taxation, 
 that its result is one which the courts should incline to 
 avoid whenever possible to do so. 
 
 There are several objections to this ruling in the James 
 Case, in construing the act of 1887: 
 
 (1) The decision seems to be based upon the rule adopted 
 under general property tax statutes, under which certifi- 
 cates of stock of foreign corporations within the state are 
 
 no But Act 1S92, c. 399, § 22, Appendix, I., would seem to confer 
 such power. 
 
 * 113 N. Y. 181, 21 N. E. 87. 
 1 127 N. Y. 80, 27 N. E. 759. 
 
 (185)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 not taxable, under the fiction of law, as against nonresi- 
 dents; but as the inheritance tax does not tax any property, 
 but merely the right or privilege of taking by will or de- 
 scent, this fiction would seem to have no proper application 
 to an inheritance tax. 141 This distinction does not seem to 
 be observed in the James Case. 
 
 (2) Again, as is shown elsewhere, it perpetrates an unjust 
 discrimination against the estates of resident decedents, as 
 shown in Ke Komaine, and also because stocks and bonds 
 in foreign corporations were held taxable, as against the 
 estates of such residents, in Re Swift, 142 the court holding 
 that to compute the succession tax on the total personal 
 estate was not imposing a tax on the stocks of foreign cor- 
 porations constituting a part of the estate. 143 
 
 (3) Regarding the holding that the state has no jurisdic- 
 tion to tax such securities, as against nonresident decedents, 
 and that it would be highly improper to impute to the legis- 
 lature such an intention, the answer is that there can be 
 no doubt, as we have shown elsewhere in this chapter, that 
 the state has ample jurisdiction to tax, under these acts, all 
 personal property both tangible and intangible, belonging 
 to nonresident decedents, and actually within the state and 
 protected by its laws. 144 
 
 In order to compel such property to pay for the protection 
 it receives, the state may give it a situs apart from the dom- 
 icile of the owner, for the purpose of taxation. In such 
 cases the fact and statutory intent, and not the fiction, must 
 prevail. 145 
 
 i" Cooley, Tax'n (2d Ed.) p. 30, and see chapter 2, §§ 8, 17, and 
 cases cited. 
 
 142 137 N. Y. 77, 32 N. E. 1096. See the question discussed by Ran- 
 som, S., in this case reported below in 16 N. Y. Supp. 193. 
 
 143 See, also, In re Merriam (1S94) 141 N. Y. 484, 36 N. E. 505. 
 
 144 see, also, Laws 1S92, c. 399, § 22. 
 
 145 in re Romaine, supra; citing In re McPherson, 104 N. Y. 306, 
 10 N. E. 685; People v. Tax Commissioners, 23 N. Y. 224; In re 
 
 (186)
 
 Ch. 4] KESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 (4) As to double taxation, it cannot always be avoided, 
 and it impinges no rule of constitutional law. It is, at most, 
 a mere matter of policy, for the taxing power or state to 
 determine, and not for the courts. 146 
 
 No state can be deprived of the right to tax such property 
 because another state — the domicile of decedent — exercises 
 the same power over, it may be, the same property. On 
 grounds of policy and comity, however, the rule has been not 
 to impose what would be, in effect, a double tax on nonresi- 
 dents' estates, where it can possibly be avoided; but, as a 
 matter of fact, this is done constantly, under these statutes. 147 
 In Coleman's Estate, 148 the court, treating the matter in 
 this view, held there was a question of public policy involved 
 in taxing nonresidents: "The rule that personal property 
 follows the domicile is internationally recognized and ob- 
 served, as being founded in convenience, 149 and a disregard 
 of it here may react to the prejudice of our own citizens." 
 
 So, under the New York statute of 1891, 150 it has been 
 recently held, in Re Phipps, 151 that the right to a legacy 
 given by the will of a resident cannot be considered prop- 
 erty located within the state for the purpose of taxation, 
 against the estate of a deceased nonresident legatee, under 
 
 Phipps, 77 Hun, 325, 28 N. Y. Supp. 330, affirmed 143 N. Y. 641, 37 
 N. E. 823; Story, Conn. Laws, § 550; Weaver's Estate (1895) 12 Lane. 
 Law Rev. (Pa.) 57, and cases cited. See, also, State v. Dalrymple, 
 70 Md. 294, 17 Atl. 82; Alvany v. Powell, 2 Jones, Eq. 51. But see 
 Alb. Law J. April 16, 1S92, p. 332; citing Story, Conn. Laws, § 399; 
 Parsons v. Lyman, 20 N. Y. 112. 
 
 i*6 See chapter 2, § 19; In re Swift (Ransom, S.) N. Y. Law J. Nov. 
 21, 1891. 
 
 i4T See In re Strong (Aug., 1894) 17 N. J. Law J. 234. 
 
 148 159 p a . St. 231, 28 Atl. 137. 
 
 149 2 Williams, Ex'rs, 1515. 
 i5o Chapter 215. 
 
 i5i 1894, 77 Hun, 325, 28 N. Y. Supp. 330; s. c, affirmed by court of 
 appeals, on opinion below, 143 N. Y. 641, 37 N. E. S23, mem. See In re 
 Thomas (1893) 3 Misc. Rep. 388, 24 N. Y. Supp. 713. 
 
 (187)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 these acts. The facts were these: Phipps was a resident of 
 Massachusetts. Under the will of one Fogg, a resident of 
 New York, he became entitled to an interest in the residu- 
 um of her estate. This was appraised, and the tax thereon 
 paid by Fogg's executors, but the legacy to Phipps was 
 never paid, nor was it in a condition to be paid ; he having 
 died in Boston, while the Fogg estate was unsettled. By 
 his will he gave his estate to his widow, and it was sought, 
 in New York, by his ancillary executors, to ascertain wheth- 
 er the legacy to Phipps was taxable ; in other words, whether 
 it was property within the state. In holding the legacy not 
 taxable, Van Brunt, P. J., in the supreme court, in an able 
 opinion, said: 
 
 "The determination of the question as to whether any tax 
 can be imposed, under the facts above stated, therefore, in- 
 volves the inquiry whether the decedent had any property 
 within this state at the time of his death. If he had, then, 
 under the principle announced in Re Romaine, 152 it is liable. 
 
 "If he had not, then, clearly, there is nothing upon which 
 the tax can operate. 
 
 "In the consideration of this question, it will not be nec- 
 essary to note the difference between the law as it was orig- 
 inally enacted in 1885 and as it existed at the death of the 
 testator, but simply to determine the question as to whether 
 a right to a legacy given by the will of a resident of this 
 state can be considered property located within this state. 
 It seems to us that the mere statement of the proposition 
 carries its answer with it, when we consider that the resi- 
 dence of a debtor does not fix the situs of the debt, but 
 rather the domicile of the creditor. 
 
 : 1t is a familiar principle that the situs of personal prop- 
 erty is presumptively the domicile of its owner, and its dis- 
 position is controlled by the laws of such domicile. 
 
 "But for certain purposes of taxation a different rule has 
 
 152 127 N. Y. 88, 27 N. E. 759. 
 (1SS)
 
 Ch. 4] EESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 obtained, because of statutes passed to prevent nonresidents 
 having the protection of our laws for their property, which 
 is invested and kept within this state without contributing 
 to the expense of such protection. 
 
 "And it is in the same line of legislation that the statute 
 of 1891 has been passed; and consequently, where a resi- 
 dent of another state dies the owner of personal property 
 which he has habitually kept and invested in this state, it is 
 liable to taxation, as has been adjudicated in the Case of 
 Romaine, above cited. But it has not yet been determined 
 that if a resident of another state dies, having debts due him 
 by residents of this state, those debts are the subject of tax- 
 ation, as being the property of the decedent within this state. 
 That such property is not the subject upon which the act in 
 question was intended to operate, seems to have been inti- 
 mated in the Case of Swift, 153 where the property the sub- 
 ject of taxation is likened to realty, being tangible, and lo- 
 cated within the limits of the state, as was the fact in ref- 
 erence to the estate of Romaine. But a mere chose in ac- 
 tion — a right to recover a sum of money — has never, as yet, 
 been given the attribute of tangibility, and this seems to be 
 all that Phipps had at the time of his death. He had a right 
 to claim the amount of money which his share of the residu- 
 ary estate of Mrs. Fogg would result in, — nothing more; no 
 particular piece of property, no particular sum of money, no 
 particular representatives of money or property. And un- 
 til this residuary estate was ascertained by an accounting 
 of the executors, the legatee might not be even able to main- 
 tain an action for its recovery. It would appear, therefore, 
 that a tax in this proceeding has been levied upon a legacy 
 which not only had never been realized, but the right to the 
 possession of which had never accrued. 154 And if, as inti- 
 
 153 137 n. Y. 77, 32 N. E. 1096. 
 
 is* See In re Weed's Estate (1894) 10 Misc. Rep. 628, 32 N. Y. Supp. 
 777. 
 
 (ISO)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 mated in Re Romaine, it was not the intention to attempt 
 to levy a tax upon property, except such as the owner, at 
 the time of his death, voluntarily permitted to remain in the 
 state, how can such a tax be levied upon property which the 
 decedent has never had it in his power to remove, if this 
 unrealized legacy can be called property within this state? 
 In other words, can this act be construed to cover a right at 
 some future time to receive a sum of nionev, or to recover 
 a debt? 
 
 "We think, clearly, it cannot, and that all that it was in- 
 tended to cover was tangible property kept within this state 
 by the decedent, and that property which is transiently here, 
 as upon the person or in the baggage of a man suddenly dy- 
 ing within this state, was never intended to be covered by 
 the provisions of the act. If the claim advanced in support 
 of the tax in the case at bar is to prevail, then in every case 
 such as has been cited must the tax be collected, which could 
 never have been the intention of the legislature." 
 
 Real estate, however, belonging to a foreign decedent, is 
 within these statutes, because it has a situs within the state, 
 and the title must be transmitted according to the laws of 
 the state governing its descent and conveyance. 155 
 
 But it has been held in Pennsylvania that real estate 
 within the state, directed by will of a nonresident to be 
 converted into money, and the proceeds directed to be divid- 
 ed among collateral heirs, was not taxable in that state, the 
 court following the rule of the domicile. 156 
 
 It was originally held, in New York, the word "estate," in 
 
 155 Orcutt's Appeal, 97 Pa. St. 184; In re Del Busto's Estate, 23 
 Wkly. Notes Cas. 111. Contra, on question of construction, In re 
 Enston's Will, 113 N. Y. 181, 21 N. E. 87; In re Tulane, 51 Hun, 213, 4 
 N. Y. Supp. 36. See, also, Chatfield v. Berchtoldt, 7 Ch. App. 192. 
 
 156 See section 46, subd. b; In re Coleman's Estate (1893) 150 Pa. 
 St. 231, 28 Atl. 137; 23 Pittsb. Leg. J. (N. S.) 211. See, contra, In re 
 Swift, 137 N. Y. 77, 32 N. E. 1096; also, In re Small's Estate, 151 
 Pa. St. 1. 25 Atl. 23. 
 
 (190)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 these acts, related, not to the person of the decedent, but to 
 the taxable property passing to the legatee or devisee. 157 
 But now, in New York, under the act of 1892, 158 it is held 
 that the words "estate" and "property" mean the aggregate 
 taxable property of the decedent, and not that of the legatee 
 or devisee. 159 The same rule also prevails in Pennsylva- 
 nia. 160 
 
 (d) Where Succession Takes Place for Purposes of Taxation. 
 
 The result of the authorities as to the liability of the per- 
 sonal estates of nonresident decedents in a foreign state is 
 far from being satisfactory, especially under statutes like 
 those of New York, Pennsylvania, and Maryland. In the 
 two latter states the cases of Orcutt's Appeal 161 and State 
 v. Dalrymple, 162 where the facts would seem to be mu^ch 
 alike, although the language of the statutes is somewhat 
 different, are diametrically opposed; the former following 
 
 157 com. v. Smith, 5 Pa. St. 142; Orcutt's Appeal, 97 Pa. St. 179; 
 State v. Dalrymple, 70 Md. 294, 17 Atl. 82; In re Howe, 112 N. Y. 
 100, 19 N. E. 513; In re Cager's Will, 111 N. Y. 343, 18 N. E. 866, and 
 chapter 3, § 41, and cases cited. 
 
 158 Laws 1892, c. 399, §§ 2, 22, Appendix, I. e. 
 
 159 In re Hoffman's Estate, 143 N. Y. 327, 38 N. E. 311. 
 leo Chapter 3, § 41. 
 
 lei 97 Pa. St. 185, substantially followed in Re Enston's Will, 113 
 N. Y. 181, 21 N. E. 87, by a divided court. See, also, In re Tulane, 
 51 Hun, 213, 4 N. Y. Supp. 36; Wallace v. Attorney General, 1 Ch. 
 App. 1, per Lord Chancellor Cranworth. But to a certain extent 
 such estates are now taxable in New York under the Laws of 1887, 
 1891, and 1892. See In re Vinot's Estate (Surr.) 7 N. Y. Supp. 517; 
 In re Clark's Estate (Surr.) 9 N. Y. Supp. 444; In re Romaine, 127 N. 
 Y. 86, 27 N. E. 759; In re Enston's Will, supra; In re Swift, 137 N. Y. 
 77, 32 N. E. 1096; In re James, 144 N. Y. 6, 38 N. E. 961; In re 
 Phipps, 77 Hun, 325, 28 N. Y. Supp. 330; Id., 143 N. Y. 641, 37 N. E. 
 823; In re Thomas, 3 Misc. Rep. 388, 24 N. Y. Supp. 713. See ar- 
 ticle in Alb, Law J. April 16, 1892, p. 331. 
 
 162 70 Md. 294, 17 Atl. 82; Alvany v. Powell, 2 Jones, Eq. 51. And 
 see cases supra. 
 
 (191)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 the fiction of law as to intangible property only, and claim- 
 ing to tax tangible property, and the latter declared public 
 policy to prevent discrimination against resident decedents. 
 Orcutt's Appeal is also opposed by the rule adopted in Re 
 Romaine, 163 and by Alvany v. Powell; 18 * and it has recently 
 been distinguished and restricted by the supreme court of 
 Pennsylvania, in Re Small's Estate. 165 But the question, 
 which would seem to be one purely of construction, is of 
 extreme importance, and remains unsettled in many states 
 where the succession and legacy tax laws exist. As, in 
 principle, these taxes are primarily imposed, not upon prop- 
 erty, but upon the succession or devolution of property by 
 will or intestate law, this would seem to be the only theory 
 upon which such a tax can properly be maintained. 166 
 
 Hence, in cases of this character, and especially where 
 there is intestacy, the pivotal question would often seem to 
 be, under what law is the succession had? That of the 
 domicile, as claimed in England under the legacy act, or that 
 of the actual situs of the property? And, if under the for- 
 mer, can there be a tax imposed at the real situs, upon the 
 theory that there is a succession or an administration there 
 for the purpose of taxation? A clear solution of these ques- 
 tions, so far as intestates is concerned, is difficult where, as 
 in New York and Pennsylvania, the statutes speak of prop- 
 erty "passing under the intestate laws of this state." Such 
 intestate estates have been held liable in the former state, 
 under the amendatory act of 1887, 167 though not liable un- 
 
 163 id. 
 
 164 127 N. Y. 88, 27 N. E. 759. 
 
 16 5 151 p a . St. 1, 25 Atl. 23 (1892); 32 Am. Law Reg. (N. S.) 305. 
 
 lee in Re McPherson, 104 N. Y. 306, 10 N. E. 685, the court held 
 the tax could be constitutionally imposed whether it was considered 
 a property or succession tax. See, also, In re Sherwell's Estate, 125 
 N. Y. 379, 26 N. E. 464. Contra, it seems, In re Bittinger's Estate. 
 129 Pa. St. 338, 18 Atl. 132. 
 
 167 in re Romaine, 127 N.Y.86,27 N.E.759; 48 Phila. Legi. Int. 365. 
 (192)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 der the prior law; 168 the statute of 1887 providing that "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 or any interest therein." The amendment is in- 
 cluded in the italics, and the language would seem to be 
 broad enough to cover both testates and intestates, as held 
 in the Romaine Case; 169 otherwise, we have the strange re- 
 sult of a state taxing one class of foreign estates, — those 
 belonging to testates, — and exempting the estates of those 
 who die intestate. The act of 1892 17 ° now taxes the trans- 
 fer of any property, real or personal, by will or intestacy,, 
 belonging to resident or nonresident decedents, where, as to 
 the latter, the transfer of property within the state; and it 
 further provides, 171 the words "estate" and "property" shall 
 include all property, or interest therein, whether situated 
 within or without the state, over which the state has any 
 jurisdiction for the purposes of taxation. 
 
 Ordinarily, neither personal nor real property can have a 
 situs in two states for the purpose of succession, 172 but there 
 is no constitutional objection to a tax upon the succession 
 in two states; 173 and as the situs at the domicile, where the 
 property is in fact in a foreign state, is the result of a mere 
 fiction of law, and as the property of residents and nonresi- 
 dents receives alike the equal care and protection of such 
 foreign state, it would seem that the legislature would have 
 undoubted power, as had been done in Connecticut and 
 other states, to make a special or particular succession by 
 statute, as to personal property of nonresident decedents ac- 
 
 168 in re Tulane, 51 Hun, 213, 4 N. Y. Supp. 36; In re Enston's Will, 
 113 N. Y. 181. 21 N. E. 87. 
 
 169 I(J. 
 
 i7o Laws 1892, c. 399, § 1. 
 i7i Laws 1892, c. 399, § 22. 
 
 172 Kintzing v. Hutchinson, 34 Leg. Int. 365, Fed. Cas. No. 7,834. 
 
 173 Chapter 2, § 19. 
 
 LAW INHER. 13 (193)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 tually within its jurisdiction, whether tangible or intangible, 
 for the purpose of taxation. 174 Otherwise, the fiction would 
 be paramount to a positive statute. 175 
 
 While the situs of personal property ordinarily follows 
 tha domicile of the owner, for particular purposes some 
 species of personal property may have an actual situs dis- 
 tinct from the legal one, and is then taxable under these 
 statutes. 176 
 
 At least, no constitutional ground would seem to be in- 
 vaded where either the person owning the property, or the 
 property itself, is actually within the jurisdiction of the tax- 
 ing state. 177 
 
 The state may give shares of stock held by individuals a 
 special or particular situs for the purpose of taxation, and 
 may provide special modes for the collection of taxes levied 
 thereon; and it is often convenient, as well as perfectly 
 just, to adopt this course. 178 
 
 Upon principle, if the tax can be imposed upon the tangi- 
 ble personal property of a nonresident decedent within the 
 state, as held in Orcutt's Appeal, 179 there would seem to be 
 no just reason why it should not equally be imposed upon 
 
 174 See In re Bittinger's Estate, 129 Pa. St. 338, 18 Atl. 132; Ameri- 
 can Coal Co. v. Comity Com'rs of Allegany Co., 59 Md. 185: Cook. 
 Stocks & Stockh. §§ 564, 566. 
 
 175 see Laws Conn. 1889, Appendix, VII.; c. 2, § 26. 
 
 17 6 in re Weaver's Estate (1895) 12 Lane. Law Rev. (Pa.) 57, citing 
 Orcutt's Appeal, 97 Pa. St. 179; In re Small's Estate, 151 Pa. St. 1, 25 
 Atl. 23, 28; In re Coleman's Estate, 159 Pa. St. 231, 28 Atl. 137. See 
 In re Phipps (1894) 77 Hun, 325, 28 N. Y. Supp. 330, affirmed 143 N. 
 Y. 641, 37 N. E. 823, mem. See Pullman's Palace Car Co. v. Pennsyl- 
 vania, 141 U. S. IS, 11 Sup. Ct. 876, affirming 107 Pa. St. 165. 
 
 177 But see remarks of Gray, J., in Re James, 144 N. Y. 6, 38 N. E. 
 961. 
 
 i7 8Cooley, Tax'n (2d Ed.) 23, citing American Coal Co. v. County 
 Com'rs of Allegany Co., 59 Md. 185; Mayor, etc., of Baltimore v. 
 Baltimore City Passenger R. Co., 57 Md. 31. 
 
 179 97 Pa. St 179. 
 (194)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 47 
 
 the intangible property actually within the taxing state, 
 and protected by its laws. 180 
 
 In conclusion, it may be said that the cases which exempt 
 tangible or intangible property of nonresident decedents 
 actually within the taxing state would seem to be objection- 
 able upon several grounds: 
 
 First. The fiction upon which the rule is based, exempting 
 such property, did not originally relate to questions of taxa- 
 tion, but, as we have seen, 181 was based merely upon ques- 
 tions of comity between states or nations. It. never had any 
 application to creditors of the deceased in the state where 
 the property actually was situated, and should not exist 
 against a state tax which the citizen is compelled to pay. 182 
 
 "The fiction or maxim, 'Mobilia personam sequuntur,' " 
 says Comstock, 0. J., in Hoyt v. Tax Com'rs, 183 "is by no 
 means of universal application. Like other fictions, it has 
 its special uses. It may be resorted to when convenience 
 and justice so require. In other circumstances, the truth, 
 and not the fiction, affords, as it plainly ought to afford, the 
 rule of action. The proper use of legal fictions is to pre- 
 
 iso in re Romaine, 127 N. Y. 88, 27 N. E. 759; In re Vinot's Estate 
 (Suit.) 7 N. Y. Supp. 517; In re Phipps, supra; U. S. v. Rankin, 8 
 Fed. 874. See In re Tulane, 51 Hun, 213, 4 N. Y. Supp. 36. See the 
 subject discussed Alb. Law J. April 16, 1S92, p. 33. 
 
 isi Supra, § 47, subd. b. 
 
 182 See remarks of Lord Brougham in Thomson v. Advocate-Gen- 
 eral, 12 Clark & F. 28; Bruce v. Bruce, 2 Bos. & P. 229 note; Catlin 
 v. Hull, 21 Vt. 158, cited and approved in Hoyt v. Tax Com'rs, 23 X. 
 Y. 232; Whart. Priv. Int. Law, §§ 11-13, 297; Green v. Van Buskirk, 
 7 Wall. 150; Hervey v. Rhode Island Locomotive Works, 93 U. S. 
 664 ; Lewis v. Woodford, 11 Heisk. 25 ; Birtwhistle v. Vardill, 5 Barn. & 
 C. 138, 451; Alvany v. Powell, 2 Jones, Eq. 51; State v. Dairy mple, 
 70 Md. 249, 17 Atl. 82; Pullman's Palace Car Co. v. Pennsylvania, 141 
 U. S. IS, 11 Sup. Ct. 876. 
 
 183 23 N. Y. 228, followed in Graham v. First Nat. Bank, 84 N. Y. 
 400, 401; In re Romaine, 127 N. Y. 86, 87, 27 N. E. 759. See People 
 v. Coleman, 119 N. Y. 137, 23 N. E. 488. 
 
 (105)
 
 § 47 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 vent injustice, according to the maxim, In fictione juris 
 semper aequitas existat.' * * * Accordingly, there seems 
 to be no place for the fiction of which we are speaking, in a 
 well-adjusted system of taxation." This rule was recently 
 followed in Pennsylvania. 184 
 
 And Mr. Justice Gray, of the United States supreme court, 
 has said of this maxim: "The old rule expressed in the 
 maxim, 'Mobilia sequuntur personam,' by which personal 
 property was regarded as subject to the law of the owner's 
 domicile, grew up in the middle ages, when movable prop- 
 erty consisted chiefly of gold and jewels, which could easily 
 be carried by the owner from place to place, or secreted in 
 spots known only to himself. In modern times, since the 
 great increase in amount and variety of personal property 
 not immediately connected with the person of the owner, 
 that rule has yielded more and more to the lex situs, — the 
 law of the place where the property is kept and used. 185 
 * * * For the purposes of taxation, as has been repeat- 
 edly affirmed by this court, personal property may be sep- 
 arated from its owner; and he may be taxed, on its account, 
 at the place where it is, although not the place of his own 
 domicile, and even if he is not a citizen or a resident of the 
 state which imposes the tax." 186 
 
 Second. It unjustly discriminates against the estates of 
 resident decedents, and thus allows nonresidents greater 
 privileges than those conferred upon the former. 187 
 
 is* In re Small's Estate, 151 Pa. St. 1, 25 Atl. 23. 
 
 185 Story, Conn. Laws, § 550; Whart. Confl. Laws, §§ 297, 311. 
 
 lac Pullman's Palace Car Co. v. Pennsylvania (1891) 141 U. S. 18, 
 22, 11 Sup. Ct. 876, affirming 107 Pa. St. 156. See the maxim also 
 considered in 5 Pol. Science Quart. Dec. 1890, p. 646. In re Small's 
 Estate, 151 Pa. St. 1, 14, 25 Atl. 23; approving Hoyt v. Commission- 
 ers, 23 N. Y. 224, 228. See note on the subject by McCarthy, 32 Am. 
 Law Reg. April, 1893, p. 365; In re Coleman's Estate, 159 Pa. St. 
 231, 28 Atl. 137; In re Romaine, 127 N. Y. 87, 27 N. E. 759. 
 
 187 id. 
 
 (100)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 48 
 
 Third. It permits a vast amount of intangible personal 
 property, under a mere fiction of law, suck property being 
 protected at all times by the state, to escape the common 
 burden imposed upon like property belonging to citizens. 
 
 § 48. Foreign Legacies. 
 
 The rule would appear to be equally well established, un- 
 der these statutes, that as to the property of a nonresident 
 decedent in the nature of legacies or shares, and termed 
 "foreign legacies," brought or sent within the taxing state 
 from abroad, after the death of the decedent, there is no lia- 
 bility for the tax. 
 
 Generally, the duty is only imposed upon property of non- 
 resident decedents within the taxing state at the time of 
 death. In cases of this character it is manifest that the 
 actual as well as a domiciliary situs is in such foreign state 
 when the ownership in the legacy accrues. Again, it may 
 well be said, as to such property, there is no succession to 
 it under or by virtue of the laws of the taxing state ; hence, 
 there would seem to be no reason whatever for imposing a 
 tax upon a succession to such property. 188 
 
 While, for the purpose of raising revenue under these 
 laws, it is declared to be a mere matter of expediency 
 whether the domicile of the decedent, or the situs of the 
 property, be adopted as the rule, if there be neither of these 
 within the taxing state, no government would impose a tax 
 
 188 State v. Brevard, Phil. Eq. 141; Alvany v. Powell, 2 Jones, Eq. 
 51; State v. Brim, 4 Jones, Eq. 301; Com. v. Duffleld, 12 Pa. St 277; 
 In re Hood's Estate, 21 Pa. St. 106; Orcutt's Appeal, 97 Pa. St. T84; 
 Drayton's Appeal, 61 Pa. St. 172; In re Tootall's Trusts, 23 Ch. DIv. 
 532. See, also, Weaver's Estate (1895) 12 Lane. Law Rev. 57; 
 In re Phipps (1S94) 77 Hun, 325, 28 N. Y. Supp. 330, affirmed 143 N. Y. 
 641, 37 N. E. 823; In re Thomas (1893) 3 Misc. Rep. 3SS, 24 N. Y. 
 Supp. 713. 
 
 (197)
 
 § 49 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 upon legatees or next of kin merely because of their resi- 
 dence within its jurisdiction. 189 
 
 So where, under a general tax law, personal property 
 sought to be taxed belonged to a nonresident, and was in 
 the possession of one of several trustees residing outside the 
 taxing state, it has recently been held that the mere fact 
 that two of the trustees resided in the latter state did not 
 warrant the imposition of a tax upon such property. 190 
 
 § 49. Rules Where Nonresident Decedent's Debts 
 Exceed Value of Estate. 191 
 
 At law the settlement of the estate of a nonresident dece- 
 dent, together with the title to his property in a foreign 
 state, generally devolves upon a local administrator in such 
 foreign state, whose business is to collect the assets, and, 
 having satisfied the demands of creditors in such state, to 
 remit the surplus of the proceeds to the executor or admin- 
 istrator at the place of domicile, for distribution among the 
 unpaid creditors and next of kin. 192 
 
 But, as debts or other lawful obligations exceeding the 
 supposed value of the estate may often exist at the domi- 
 cile, unknown to local representatives and tribunals, the 
 difficulty early suggested itself, in such cases, of ascertain- 
 ing the exact amount passing to the legatee or devisee 
 whose interest it was sought to tax, and thus making it un- 
 certain, to some extent, whether, should there be debts, any 
 
 189 state v. Brim, supra; In re Hood's Estate, supra. 
 
 19 People v. Coleman, 119 N. Y. 137, 23 N. E. 488; People v. Bar- 
 ker, 135 N. Y. 656, 32 N. E. 252. 
 
 i9i See, also, chapter 5, § 52, as to deduction of debts upon appraise- 
 ment. 
 
 192 in re Short's Estate, 16 Pa. St. 66; In re Del Busto's Estate, 23 
 Wkly. Notes Cas. Ill; In re Enston's Will, 113 N. Y. 181, 21 N. E. 
 87. 
 
 (198)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 49 
 
 surplus would exist, and, if so, the exact amount which 
 would be subject to taxation. 
 
 Upon these grounds it was held in Pennsylvania that 
 such a tax could not practically be imposed upon intangible 
 personal property, except by the state of the domicile, where 
 the final administration of the estate was made. 193 
 
 The same ground of objection was raised in England, un- 
 der the legacy and succession laws, as to all personal prop- 
 erty of nonresidents, 194 although, as we have seen, the au- 
 thorities in that country are not harmonious upon the sub- 
 ject, and the succession tax is, in many instances, imposed 
 upon estates of nonresident decedents. 195 
 
 In New York, in speaking of this subject 196 the law of 
 1885, which was held not to apply to nonresident estates, 
 Andrews, J., said : "That [how much will pass to collaterals] 
 can only be known after the entire expenses of administra- 
 tion and the debts and liabilities of the deceased have been 
 ascertained and deducted at the place of his domicile. Sup- 
 pose a nonresident dies leaving $1,000,000 in this state, and 
 is largely indebted at the place of his domicile, what his net 
 estate will be after deducting debts and expenses of admin- 
 istration can only be ascertained at his domicile, where his 
 estate must be finally administered and adjusted; and there 
 
 193 Orcutt's Appeal, 97 Pa. St. 185, 186; In re Short's Estate, 16 
 Pa. St. 66; Commonwealth's Appeal, 34 Pa. St. 204; Strode v. Com., 
 52 Pa. St. 181; Com. v. Coleman, Id. 470, 472; In re Hood's Estate, 
 21 Pa. St. 106; In re Enston's Will, 113 N. Y. 181, 21 N. E. 87; In 
 re Tulane, 51 Hun, 213, 4 N. Y. Supp. 36; In re Del Busto's Estate, 
 23 Wkly. Notes Cas. Ill; In re Bacon's Estate, 3 Del. Co. Rep. 603. 
 
 194 Wallace v. Attorney General, 1 Ch. App. 1. 
 
 195 Supra, p. 163; In re Lovelace, 4 De Gex & J. 340; In re Wal- 
 lop's Trust, 1 De Gex, J. & S. 356; In re Tootall's Trusts, 23 Ch. Div. 
 532. 
 
 196 in re Enston's Will, 113 N. Y. 1S2, 21 N. E. 87; Danforth and 
 Finch, JJ., dissenting, and Ruger, C. J., not voting. And see opinion 
 Danforth, J., at page 185, 113 N Y., and page 87, 21 N. E. 
 
 (199)
 
 § 49 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 can be no way of adjusting the estate here, as there is no 
 machinery in the law here appropriate to such a purpose, 
 and thus it would be impractical to administer this statute." 
 
 "The tax," said the court in Orcutt's Appeal, 197 "does not 
 attach to the very article of property of which the deceased 
 died possessed. 198 It is imposed only on what remains for 
 distribution after expenses of administration, debts, and 
 rightful claims of third parties are paid or provided for. It 
 is on the net succession to the beneficiaries, and not on the 
 securities in which the estate of the decedent was invest- 
 ed. 199 How, then, is it possible to impose a tax on this 
 fund, when it has never been judicially ascertained how 
 much, or whether any, of it will go to the collateral legatees? 
 When the executrix charges herself with the fund received 
 from the ancillary administrator, and settles her account in 
 New Jersey, who can tell how much of it may be success- 
 fully claimed by creditors and others, as against legatees? 
 The court of the testator's domicile is the only one that can 
 properly determine how much of it will actually go to the 
 collateral legatees." 
 
 But it would seem that in many instances these objec- 
 tions are liable to be more theoretical than real. 200 Assuming 
 that there is an intention to tax nonresident decedents' es- 
 tates, whether the tax shall be payable out of the specific tax- 
 able interest, or only upon the net surplus of the whole estate 
 remaining after deducting just debts and liabilities owing 
 either at the domicile or situs, must often depend upon the 
 language of the statute; and its practical enforcement must, 
 like that of every statute, depend upon the circumstances of 
 
 I" 97 Pa. St. 185. 
 
 198 But see, per Danforth, J., In re Enston's Will, 113 N. Y. TS5, 21 
 N. E. 87. 
 
 199 Citing Commonwealth's Appeal, supra; Strode v. Com., supra. 
 
 200 Wallace v. Attorney General, 1< Ch. App. 1. And see Alvany 
 v. Powell, 2 Jones, Eq. 51; In re Enston's Will, 113 N. Y. 185, 21 
 JSL E. 87. 
 
 (200)
 
 Ch. 4] RESIDENT AND NONRESIDENT DECEDENTS. § 49 
 
 each case. From the authorities, and on principle, it would 
 appear that the tax can only fairly be imposed upon the net 
 surplus passing to collaterals after all just debts and lia- 
 bilities are deducted or paid. 201 Hence, where decedent's 
 debts in another state exceed the value of the personalty 
 there, it is not liable to taxation. 202 
 
 A fair and reasonable opportunity should therefore be af- 
 forded the estate, or its representatives, to show, as the fact 
 may be, either that the estate is insolvent, and thus wholly 
 unable to pay any tax, as no interest will pass to the heir, 
 legatee, or devisee, or that, by reason of the existence of just 
 and lawful demands at the domicile or situs, the tax should 
 be proportionately reduced. 
 
 In some states the tax is upon the "clear value," or "clear 
 market value," or "fair and clear market value," of the es- 
 tate at decedent's death; 203 thus implying that outstanding 
 debts and liabilities, at the time of death, that are just and 
 legal, must be taken into consideration by the court or ap- 
 praiser, in estimating the value of the taxable interest. 
 
 201 strode v. Com., 52 Pa. St. 189, and cases supra. 
 
 202 coin. v. Coleman, 52 Pa. St. 473. 
 
 203 see Appendix, I., III., VII., Laws Pa. 18S7, p. 79, § 1; Laws 
 N. Y. 18S7, c. 713, §§ 1, 2; Laws 1892, c. 399, § 6; Laws Conn. 1889, 
 p. 106, c. 180. See In re Astor, 6 Dem. Sur. 411. Whether, under 
 the New York statutes, deductions for debts can be made by the ap- 
 praiser or court where they do not exist at decedent's death, but 
 only arise in course of the administration of the estate, such as com- 
 missioners of executors and expenses of administration, etc., which 
 it has been the practice of appraisers or surrogates to deduct, see In 
 re Havens (Aug. 1, 1890) 3 N. Y. Law J. 900; In re Meyer (May 26, 
 1891) 5 N. Y. Law J. 532; In re Hope (Feb. 13, 1S93) 8 N. Y. Law J. 
 1164; In re Sidell, N. Y. Law J. (March 10, 1893). See, also, In re 
 Vassar, 127 N. Y. 8, 27 N. E. 394; In re Ludlow's Estate (Surr.) 25 
 N. Y. Supp. 9S9; In re Millward's Estate (Surr.) 27 N. Y. Supp. 286; 
 In re Swift, 137 N. Y. 77, 32 N. E. 1096. See, also, In re Gould (June 
 18, 1S95) 13 N. Y. Law J. 781, where it was held that all these items 
 can be deducted by the appraiser. 
 
 (201)
 
 § 49 RESIDENT AND NONRESIDENT DECEDENTS. [Ch. 4 
 
 And in New York the statute 204 provides that whenever 
 any debts shall be proven against the estate of a decedent 
 after the payment of legacies or distribution of property 
 from which the said tax has been deducted, or upon which 
 it has been paid, and a refund is made by the legatee or dev- 
 isee, a proportion of the tax so paid shall be repaid to him 
 by the executor, if the said tax has not been paid to the 
 county treasurer, or by them if it has been so paid. 205 
 
 Where the testator dies possessed of personal property in 
 England, as well as abroad, the application for a return of 
 the duty on the ground of debts must, under the English law, 
 be made without taking into consideration the foreign as- 
 sets; and, should he have incurred foreign debts, these must 
 be paid out of the foreign assets, as far as they will be suffi- 
 cient to satisfy them. But should the testator die out of 
 England, leaving assets in the latter country, for which it 
 is necessary to take out a grant, no application for the re- 
 turn of any portion of the probate duty in respect of debts 
 incurred abroad will be entertained; for the executor who 
 has taken out the grant there, after paying any debts in- 
 curred in England, in respect of which any application for 
 a return of duty may be made, will transmit the remainder 
 of the assets to the representative of the deceased in the 
 country where he died, to be dealt with according to the law 
 of that country. 206 
 
 204 Laws 18S7, § 10; Laws 1892, c. 399, § 6. See St. Pa. Appendix, 
 III., § 11. 
 
 205 See In re Enston's Will. 113 N. Y. 186, 21 N. E. 87. See, under 
 this section, In re Howard, 54 Hun, 305, 7 N. Y. Supp. 594; citing 1 
 Dewey v. Supervisors of Niagara Co., 62 N. Y. 294; In re Hall's 
 Estate (Sup.) 7 N. Y. Supp. 595; also, In re McMahon, 1 How. Pr. 
 (N. S.) 270. Redf. Sur. Prac. (4th Ed.) p. 586, considers this section 
 12, Act 1887, open to constitutional objection. 
 
 206 Layton, Succ. & Leg. Duties, p. 250; citing Reg. v. Commission- 
 ers of Stamps & Taxes (Ostell's Case) 18 Law J. Q. B. 201. 
 
 (202)
 
 Ch. 6] APPRAISER AND APPRAISEMENT. § 50 
 
 CHAPTER V. 
 
 APPRAISER AND APPRAISEMENT. 
 
 § 50. Assessments and Assessors Generally, and Rules Regulating. 
 
 51. Appointment. Powers, and Duties of Appraisers. 
 
 52. Land and Personal Estate, and Where Appraised— "Fair 
 
 Market Value." 
 
 53. Life Estates, Annuities, Legacies, and Terms of Years. 
 
 54. Remainders, Contingent, and Future Estates. 
 
 (a) Under Acts of Congress. 
 
 (b) In Maryland and Connecticut. 
 
 (c) In Pennsylvania. 
 
 (d) New York. 
 
 (1) Provisions Act 1892. 
 
 (a) Vested Estates and Remainders. 
 
 (b) Contingent Estates— When not Appraisable at 
 
 Death. 
 
 (c) May be Appraised on Vesting. 
 
 (d) When Appraisable at Death. 
 
 55. Effect of Appraisement and Appeals Therefrom. 
 
 § 50. Assessments and Assessors Generally, and 
 Rules Regulating. 
 
 It is not inappropriate, in connection with the inheritance 
 tax, to refer here to some of the rules at law regulating and 
 governing assessments and assessors generally. An assess- 
 ment under general tax laws is defined as the making out of 
 a list of property and fixing its valuation or appraisement. 
 It is so far an inseparable incident of taxation that no right 
 of action arises until a legal assessment is made. 1 
 
 Proceedings for the assessment of property are of a judi- 
 cial character, and assessors or appraisers, in making assess- 
 ments, act judicially. 2 
 
 i Hil. Tax'n, p. 291, §§ 2, 3. 
 
 * In re McLean (1893) 138 N. Y. 158, 33 N. E. 821; Van Derventer 
 
 (203)
 
 § 50 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 Their decisions, as a general rule, will not be reviewed, 
 upon questions of value or appraisement, where the officers 
 proceed upon information or evidence tending to support 
 their decisions; and the courts will not generally look into 
 questions of fact as to the amount or value of the personal 
 estate of persons assessed. These are questions for the 
 judgment of the assessors, and their decisions will ordinarily 
 be sustained. 3 
 
 But it is essential to the validity of every assessment that 
 the statute under authority of which it is made should be 
 complied with in every substantial particular. 4 
 
 These principles apply to the appraisement under the in- 
 heritance and legacy tax laws, and to some extent the sur- 
 rogate acts as an assessor. 5 As was said in Re Wolfe, 6 
 in construing the act of 1S87: "The proper construction of 
 this act makes of the surrogate the assessing and taxing 
 officer, and, as such, the representative of the state for pur- 
 poses relating to the appraisement and taxation of prop- 
 erty. * * * The surrogate should proceed with the as- 
 sessment of the tax without notice to any state offi- 
 cial." 7 "There is no difference between the principle upon 
 which the surrogate acts in proceedings to assess property 
 for taxation under the act, and that upon which, in the gen- 
 
 v. Long Island City, 139 N. Y. 133, 34 N. E. 774; In re Ullmann, 137 
 N. Y. 403, 33 N. E. 480, reversing 67 Hun, 5, 21 N. Y. Supp. 758. 
 
 3 People v. Barker, 139 N. Y. 60, 35 N. E. 208; People v. Hicks, 
 105 N. Y. 189, 11 N. E. 653. 
 
 * Sanders v. Downs, 141 N. Y. 422, 36 N. E. 391. 
 
 e In re Wolfe, 137 N. Y. 205, 33 N. E. 156; In re Ullmann, 137 N. 
 Y. 403, 33 N. E. 480; In re Smith's Estate (Surr.) 23 N. Y. Supp. 762; 
 Weston v. Goodrich, 86 Hun, 194, 33 N. Y. Supp. 382; McKean's 
 Estate, 29 Pa. Law J. (N. S.) 299; Com. v. Freedley, 21 Pa, St. 36. 
 
 eld. 
 
 7 But under Act 1S92, c. 399, §§ 11, 12, notice for the appointment 
 of appraisers under the act must be given to the county treasurer or 
 comptroller. 
 (204)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 50 
 
 eral system of taxation in the state, tax assessors act in the 
 assessment of persons or property for purposes of taxation." 
 The principles upon which the surrogate and town assess- 
 ors act are similar. 8 In Pennsylvania the appraisement of 
 land under these statutes is made in the same manner as 
 land is assessed for general taxation. 9 In New York, under 
 the act of 1887, 10 it is provided that the surrogate shall, 
 from the appraiser's report, assess and fix the cash value of 
 all estates, and the tax to which the same is liable; and it 
 is held that this direction to assess involved the necessity 
 as well as the power to determine the question of liability, 
 as much as it does in the case of assessors under general 
 tax laws. In this respect the surrogate is made an assess- 
 or. He must decide whether the property is taxable, for 
 that fact lies at the foundation of his jurisdiction, and is of 
 the essence of his right to proceed with the assessment. 11 
 So under the New York statutes the surrogate has original 
 and exclusive jurisdiction as assessor and taxing officer, in 
 the first instance, for all purposes relating to the appraise- 
 ment and taxation of property, and no power is conferred 
 upon the supreme court of the state, in an equity actioo, 
 either to assess or determine such liability, in the first in- 
 stance. 12 
 
 In Weston v. Goodrich, 13 it was urged that, inasmuch as 
 the supreme court and the surrogate's court had concurrent 
 jurisdiction in many instances, and as the taxing act did 
 
 s In re Smith's Estate, supra. 
 
 » McKean's Estate, supra; Com. v. Freedley, supra. 
 
 io Chapter 713, §§ 1-13. See Laws 1892, c. 399, § 13. 
 
 ii In re Wolfe (1893) supra, affirming 66 Hun, 389, 21 N. Y. Supp. 
 515, 522. 
 
 12 Weston v. Goodrich, 86 Hun, 194, 33 N. Y. Supp. 382. But see 
 Laws 1895, c. 556, amending Laws 1892, c. 399, § 13; In re Ullmann, 
 supra. 
 
 is id, 
 
 (205)
 
 § 50 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 not in terms exclude any court, that the supreme court, as 
 a court of general jurisdiction, might also assess and deter- 
 mine the tax, if incidental to the complete determination of 
 an estate of which it had taken jurisdiction for some special 
 purpose. In overruling this contention, Parker, J., said: 
 "The premise, however, is faulty, in that the statute does 
 not confer jurisdiction upon the surrogate's court as such 
 in the first instance to assess and determine the tax. The 
 surrogate, as a taxing officer, after the appraiser has ap- 
 praised the property, enters his order fixing the tax 'as of 
 course,' and thereafter any person aggrieved may appeal 
 therefrom to the surrogate. By both the initial act of 1885 
 and the subsequent one of 1892 a special state tax not be- 
 longing to the system of general taxation was created. In 
 character it was so entirely different from the general plan 
 of taxation that special agencies were necessary for its en- 
 forcement. What those agencies should be, and under 
 what rules and regulations they should proceed to enforce 
 the collection of the tax, the legislature alone had power 
 to determine. * * * Instead of providing for the ap- 
 pointment of assessors or collectors or tax officers under 
 some other name, to execute the provisions of the law, the 
 legislature, not unwisely, determined that the surrogates of 
 the several counties of the state were in a position to more 
 economically and effectively enforce the collection of the 
 tax than any other agency that could be devised, and so 
 the surrogates were made special taxing officers, and char- 
 ged with the duty of enforcing the collection of this special 
 state tax upon such notice to those interested, and in the 
 manner provided by the statute. That the statute consti- 
 tuted the surrogate, and he alone the assessing and taxing 
 officer, and, as such, the only representative of the state, 
 in the first instance, for all purposes relating to the ap- 
 praisement and taxation of property, will clearly appear 
 (206)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 50 
 
 from a brief reference to certain of its provisions. 14 * * * 
 It is clear that the initial steps which the statute requires 
 the surrogate to take are those of taxing officers, and not 
 of judges. He appoints an appraiser, to appraise the cash 
 value of the property. Upon the coming in of the report, 
 he may enter an order determining the cash value of the 
 estate; * * * but the party aggrieved may take an ap- 
 peal from the order, * * * and then, for the first time, 
 the procedure takes on a judicial character. But it is no 
 more so than that of a board of assessors who are required 
 to give public notice of the completion of the assessment 
 roll, and the time when they will hear all parties aggrieved, 
 at which time those who are dissatisfied may appeal to the 
 board of assessors, upon affidavits and other proofs, to make 
 corrections of the assessment roll, in so far as it affects 
 them." 
 
 But under an amendment recently passed in New York (in 
 1895), 15 jurisdiction is now conferred upon a justice of the 
 supreme court in the district where decedent resided, with- 
 in two years after the entry of an order of the surrogate 
 assessing and fixing a tax, to grant a reappraisement of 
 such estate, upon the application of the state comptroller, 
 based upon his belief that the first appraisal was fraudu- 
 lently, collusively, or erroneously made. Such appraiser 
 shall have the same powers as an ordinary appraiser has 
 under the act. This report shall be filed with the justice 
 by whom he is appointed, and the same proceedings may be 
 taken before him as before the surrogate. His determina- 
 tion and assessment shall supersede the determination and 
 assessment of the surrogate, and shall be filed by such jus- 
 tice in the office of the state comptroller. 
 
 Again, the property appraisable and taxable under the 
 
 I* Citing Laws 1892, c. 399, §§ 10, 11, 13. 
 
 1 6 Appendix, I. e, Laws 1895, c. 55G, amending Laws 1892, c. 399, 
 §13. 
 
 (207)
 
 § 50 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 inheritance tax is not merely confined to property which 
 is taxable under general tax laws. This was held upon 
 the question as to whether a policy of insurance upon de- 
 cedent's life was assessable and taxable by means of an 
 inheritance tax. In holding it was, the court said: 16 "The 
 taxable transfer law has no reference or relation to the 
 general law. The two acts are not in pari materia. While 
 the object of both is to raise revenue for the support of the 
 government, they have nothing else in common. Nearly 
 sixty years intervened between the passage of the earlier 
 and the later statute, and the latter was enacted under dif- 
 ferent conditions from the former. It proceeds upon a new 
 theory, of the right of government to tax and establish a 
 new system of taxation. It taxes the right of succession to 
 property, and measures the tax in the method specifically 
 prescribed. All property having an appraisable value must 
 be considered, whether it is such as might be taxed under 
 the general law or not. Many kinds of property might be 
 enumerated which are not assessable under the general law, 
 but which are appraisable under the collateral inheritance 
 act. The definition of the different kinds of property which 
 the legislature has incorporated in the general tax law, for 
 the purpose of that law, cannot be imported into the col- 
 lateral inheritance tax law, upon any sound principle of 
 statutory construction." Under the legacy acts of congress, 
 money received on life insurance, and distributed to heirs, 
 was taxable; but under the succession acts, life insurance 
 money for a policy taken out by another for the assured was 
 not subject to the tax. 17 
 
 16 In re Knoedler's Estate (1893) 140 N. Y. 379, 35 N. E. 601, af- 
 firming 68 Hun, 150, 22 N. Y. Supp. 608. 
 
 it 3 int. Rev. Rec. 140. For questions as to liability to pay duty 
 on policies of insurance under the English law, see Attorney General 
 v. Yelverton, 7 Jur. (N. S.) 1250; Oldfield v. Preston, 3 De Gex, F. 
 & J. 398; In re Jenkinson, 24 Beav. 64. 
 (208)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 51 
 
 § 61. Appointment, Powers, and Duties of 
 Appraiser. 18 
 
 The proceeding for the appointment of an appraiser, the 
 duties of such appraiser, and the method by which property 
 subject to succession or legacy taxation is to be valued or 
 appraised, are matters regulated by statute. 19 
 
 An appraiser should be appointed only where specific 
 legacies subject to the tax are given, or where taxable in- 
 heritances exist, or estates in fee are devised, or remain- 
 ders, annuities, life estates, or terms of years are created. 20 
 
 The appraiser may compel payment of his fees by man- 
 damus against the county treasurer. 21 
 
 In New York he is now required 22 to fix the fair market 
 value, at the time of the transfer thereof, of property subject 
 to the tax; and, by an act passed in New York, in 1891, 23 
 it is also provided that whenever, by reason of the provi- 
 sions of any law, it shall become necessary to appraise, in 
 whole or in part, the estate of any deceased person, the per- 
 sons whose duty it shall be to make such appraisal shall 
 
 is See, also, chapter 7, § 62. An appraiser who takes any fee or 
 reward is guilty of a misdemeanor in New York. Laws 1S93, p. 1725, 
 c. G92, § 48. 
 
 i9 See statutes, Appendix, I., III., VII., VIII.,— Laws N. Y. 1892, 
 c. 399, §§ 11, 12; Laws N. Y. 1SS7, e. 713, §§ 2, 13, 14; Laws Pa. 
 1SS7, p. 79, §§ 12, 13; Laws Conn. 1SS9, p. 106, c. 180, §§ 2, 12; 2 
 Code Md. 18S8, p. 1242, §§ 104, 106, et seq.; Laws 111. (By James B. 
 Bradwell) 1895, p. 213, § 11. See statute, Appendix, X. For forms 
 relating to appraisements, etc., in New York, see Appendix, I.; In 
 re Astor, 6 Dem. Sur. 402. 
 
 20 in re Jones, 5 Dem. Sur. 30, 19 Abb. N. C. 221. 
 
 21 In re Murray, Bartlett, J., Kings Co., N. Y., unreported. 
 
 22 Laws 1892, c. 399, § 11. The same under St. 111. 1895, § 11, Ap- 
 pendix, X. 
 
 23 Laws 1891, c. 34, § 1. See Appendix, I (f). 
 
 LAW INHER. 14 (209)
 
 § 51 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 value the real estate at its full and true value, taking into 
 consideration actual sales of neighboring real estate simi- 
 larly situated during the year immediately preceding the 
 date of such appraisal, if any; and they shall value all such 
 property, stocks, bonds, or securities as are customarily 
 bought or sold in open markets in the city of New York or 
 elsewhere, for the day on which such appraisal or report 
 may be required, by ascertaining the range of the market, 
 and the average of prices as thus found, running through 
 a reasonable period of time. This statute is important, but 
 how far it applies to appraisements under the inheritance 
 tax laws does not appear to have been determined. It 
 would seem to apply to all appraisements. Under the 
 Pennsylvania statute, he is required to fix the value of es- 
 tates subject to the tax, and to make a "fair and conscion- 
 able" appraisement of such estates, and to assess and fix 
 the cash value of all annuities and life estates. 24 And by an 
 amendment to this statute, passed in 1895,* the registers of 
 wills are authorized, with the approval of the auditor gen- 
 eral, to appoint expert appraisers. 
 
 As it is primarily the duty of the executor to apply for 
 the appraisement, under the New York statute, the power 
 given to the surrogate to appoint an appraiser of his own 
 
 24 See statutes, Appendix, III., § 12; In re Goldstein's Estate, 16 
 Phila. 319; In re Kaas' Estate, 45 Leg. Int. 217; Commonwealth's 
 Appeal (Cooper's Estate) 127 Pa. St. 435, 17 Atl. 1094; and cases 
 supra. As to appraisement of partnership interests and assets, see 
 Commonwealth's Appeal (Fagely's Estate) 12S Pa. St. 604, 18 Atl. 
 386; In re Wheeler's Estate (1892) 1 Misc. Rep. 450, 22 N. Y. Supp. 
 1075. For mode of ascertaining duty under English legacy and suc- 
 cession acts, see 36 Geo. III. c. 52, § 22; 16 & 17 Vict. c. 51, §§ 10, 
 21, 22, et seq.; Attorney General v. Earl of Sefton, 11 H. L. Cas. 
 257, 269, 2 Hurl. & C. 362; Attorney General v. Dardier, 11 Q. B. 
 Div. 16. 
 
 * See Appendix, III., Laws 1895, No. 243, p. 325. 
 
 (210)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 51 
 
 motion is not intended to relieve the representatives of the 
 estate from their duty in this respect; 25 and where the leg- 
 acies are in cash the court or surrogate fixes and assesses 
 the tax upon the face value thereof, and no appraiser is nec- 
 essary. 28 
 
 The appraiser is not appointed to fix the value of prop- 
 erty which is not subject to the tax. 27 
 
 An appraiser, will not be appointed, under the transfer 
 act, for the purpose of procuring an adjudication as to the 
 liability of the estate, where the petitioner swears to the 
 belief that no portion of the estate is liable to the tax. The 
 act only provides for the appointment of an appraiser where 
 the estate is subject to the payment of the tax, 28 and an 
 appraiser will only be appointed to take proof and report 
 upon an application submitted therefor containing a state- 
 ment of the facts involved. 29 
 
 An appraiser will not be dispensed with where the estate 
 consists of a mortgage the value of which may exceed its 
 face. 30 
 
 The object of the appraisement, as well as the duty of 
 the appraiser, is not to determine whether the estate is sub- 
 
 25 Frazer v. People (Surr.) 3 N. Y. Supp. 134. But see In re Far- 
 ley. 15 N. Y. St. Rep. 727. 
 
 2 6 in re Astor, 6 Dem. Sur. 402; Id. (Surr.) 2 N. Y. Supp. 630; In 
 re Jones, 5 Dem. Sur. 30; In re Bird's Estate (Surr.) 11 N. Y. Supp. 
 895; In re McGowan's Estate, 3 N. Y. Law J. (July 30, 1890) p. SSS; 
 In re Pond, N. Y. Daily Reg. May 25, 1SS9; In re Somerville N. Y. 
 Law J. Jan. 21, 1893. Contra, In re Peck's Estate (Surr.) 9 N. Y. 
 Supp. 465. As to $500 legacies, see chapter 3, § 41. 
 
 27 in re Astor (Surr.) 2 N. Y. Supp. 630; In re Jones, 19 Abb. N. 
 C. 221; In re Cabn, 9 N. Y. Law J. April 13, 1S93, p. 116. 
 
 2 8 Laws 1S92, c. 399. 
 
 29 In re Cabn (April 13, 1893) 9 N. Y. Law J. 116, citing In re 
 Wolfe, 137 N". Y. 214, 33 N. E. 156. 
 
 so In re Somerville (Jan. 21, 1S93) 8 N. Y. Law J. p. 956. 
 
 (211)
 
 § 51 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 ject to the tax, but simply to ascertain the value of the 
 estate; and where it is not subject to be assessed with the 
 tax the entire proceeding is a nullity, for it is only as to 
 estates that are, or shall be, subject to the payment of the 
 tax, that the register has any power for the purpose of ap- 
 praisement and assessment; and the owner of the estate is 
 not bound to submit the question of his liability to pay the 
 tax either to the register or to the appraiser. 31 The ap- 
 praisement, as a general rule, should be restricted to the 
 taxable estate or interest, — that only being liable to the 
 tax, — and should not include the general property of the 
 decedent, 32 unless it is all liable to taxation. 33 Under the 
 laws of New York and Pennsylvania the general estate of 
 the decedent is liable to taxation. The tax is imposed 
 upon that. 34 Where the estate is insufficient to pay leg- 
 acies in full, and the will provides that legatees should re- 
 ceive their proportionate shares, the appraisers should re- 
 port the proportionate value of each share. No tax can be 
 determined until their proportionate value has been ascer- 
 tained. 35 
 
 The duties of the appraiser, under the New York statute, 
 were defined by Surrogate Ransom in Re Astor: 36 He 
 
 si Stinger v. Com., 26 Pa. St. 424, 429; In re Kaas' Estate, 45 Leg. 
 Int. 217. But see In re Astor, 6 Dem. Sur. 410. 
 
 32 In re Jones, 5 Dem. Sur. 30; In re Robertson, Id. 92; In re Floyd 
 (March 3, 1891) 4 N. Y. Law J. 1378. But see Com. v. Kerchner, 24 
 Wkly. Notes Cas. 260; Com. v. Boyle, 2 Del. Co. Rep. 335; chapter 
 3, § 41. 
 
 33 In re Swift (Surr.) 16 N. Y. Supp. 193; Id. (Sup.) 19 N. Y. Supp. 
 292; Id., reversed on another point, 137 N. Y. 77, 32 N. E. 1096. 
 
 34 in re Hoffman's Estate, 143 N. Y. 327, 38 N. E. 311. See chap- 
 ter 3, § 41. 
 
 ss in re O'Sullivan, N. Y. Law J. Oct. 23, 1890; In re Somerville 
 (Jan. 21, 1893) 8 N. Y. Law J. 956. 
 3 6 6 Dem. Sur. 415. 
 (212)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 51 
 
 should report any property, estate, or interest therein sub- 
 ject to the tax. 37 It is not his duty to report exemptions, 38 
 or to fix the value of property not subject to the tax; and, 
 where he has not reported all property that is subject there- 
 to, exception may be raised upon the hearing on his report, 
 and, where the exception is sustained, the report will be 
 sent back for further appraisement. 39 And where the ap- 
 praiser is in doubt regarding the liability of any property, 
 he should report it as subject to the tax. 40 He had no pow- 
 er, under the New York acts in existence prior to 1892, to 
 take testimony under oath, 41 but now, by the transfer act 
 of 1892, 42 such power is conferred, as he has power to issue 
 subpoenas to compel the attendance of witnesses before him, 
 and to take the evidence of such witnesses, under oath, con- 
 cerning such property, and the value thereof. The same 
 power is conferred upon the appraiser under the Illinois 
 statute. 43 In Pennsylvania it would seem that such power 
 is conferred. 44 All papers relating to matters before the 
 appraiser, should be submitted to him before he makes his 
 report to the surrogate, otherwise, the matter will be re- 
 ferred to him to proceed de novo. 45 The names of all per- 
 sons entitled to notice should be given in the order appoint- 
 
 37 Laws 1SS5, c. 4S3; Laws 18S7, c. 713, § 13,— Appendix, I.; In re 
 Wallace's Estate (Suit.) 4 N. Y. Supp. 465. 
 
 ss in re Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 239; In re Mc- 
 Gowan's Estate (July 30, 1890) 3 N. Y. Law J. 888. 
 
 39 in re Matthews' Estate, N. Y. Law J. July 27, 1889; In re Jones' 
 Estate (July 31, 1890) 3 N. Y. Law J. 896; In re Benet's Estate, N. Y. 
 Daily Reg. March 4, 1889. 
 
 40 In re Hendricks, 3 N. Y. Supp. 2S1; In re McGowan's Estate, 
 supra; In re Floyd, supra. 
 
 4i In re Astor, 6 Dem. Sur. 410. 
 
 42 Chapter 399, § 12. 
 
 4 3 Act 1895, Appendix, X., § 11.. 
 
 44 In re Kaas' Estate, 45 Leg. Int. 217. 
 
 4 5 in re Jones' Estate (July 31, 1S90) 3 N. Y. Law J. 896. 
 
 (213)
 
 § 51 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 ing the appraiser. To these he must give notice of the pro- 
 ceeding, 48 and he should also state in his report whether 
 any other persons claim any interest in the property ap- 
 praised; 47 and all parties notified have the right to attend 
 before him, and to be heard on the questiou of the value of 
 the property, and its or their liability to the tax. 48 Under 
 the act of 1892 49 this notice must also be given to the coun- 
 ty treasurer or comptroller. No such notice to these offi- 
 cials or to any state official, was required under the acts in 
 existence prior to 1892. 50 As to persons not notified or 
 heard, the proceedings are void. 51 Under general tax laws, 
 in order to make an assessment judicially valid, there must 
 be notice to the party interested in the determination, and 
 an opportunity to be heard. 52 
 
 Upon a subsequent occasion, in defining the duties of the 
 appraiser, Surrogate Ransom said, 53 in a case where it was 
 objected that the appraiser had no power to construe clauses 
 of the will for the purpose of reporting legacies liable to 
 the tax: "It is certainly the appraiser's duty to examine 
 the will to see what its provisions are, and as certainly his 
 duty to call the attention of the surrogate to any facts that 
 appear to him as constituting sufficient reasons for report- 
 ing such legacies as subject to the tax. His duty is to place 
 
 46 Laws 1S92, c 399, § 12. 
 
 47 in re Astor, 5 Deiii. Sur. 410; In re Vanderbilt's Estate (Surr.) 
 10 N. Y. Supp. 293; In re McPherson, 104 N. Y. 306, 10 N. E. 685; 
 Coxe's Appeal, 1 Purd. Dig. (10th Ed.) 218, note. 
 
 4 8 in re Astor, supra. But see Stinger v. Com., 26 Pa. St. 424. 
 
 49 Appendix, I. e, Laws 1892, c. 399, § 12. 
 
 eo In re Wolfe, 137 N. Y. 205, 33 N. E. 156. 
 
 6i In re Cockey, 8 N. Y. Law J. March 21, 1893, p. 1507. 
 
 52 People v. Gilon, 121 N. Y. 551, 558, 24 N. E. 944; Stuart v. Pal- 
 mer, 74 N. Y. 183, 190. 
 
 ea In re MeGowan's Estate, 3 N. Y. Law J. July 30, 1S90, p. SS8. 
 See In re Knoedler's Estate (1S93) 140 N. Y. 379, 35 N. E. 601; In re 
 Ullmann, 137 N. Y. 403, 33 N. E. 4S0. 
 (214)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 51 
 
 all the facts before the surrogate. The report is not final. 
 It is to aid the surrogate to decide what property is liable 
 to the tax, and it is subject to the confirmation, revision, or 
 rejection by the surrogate. The facts in this case ascer- 
 tained by the appraiser, and undisputed, show that the leg- 
 acies in question passed to a person not exempted. On 
 those facts the surrogate construes the will." Where it ap- 
 pears from decedent's will that the intention was that the 
 legatees should take per capita, and not per stirpes, and 
 the appraiser makes a miscalculation of values by report- 
 ing that the legatees take per stirpes, the matter will be 
 remitted to him for correction and further report. 54 
 
 By express provision of the statutes of New York 55 and 
 Illinois, 56 and by that of Pennsylvania, 57 an appraiser may 
 be appointed as often as, and whenever, occasion may re- 
 quire; but it seems that where an appraiser is appointed, 
 and other interests accrue after his appointment, but be- 
 fore his report is filed, he has power to appraise such inter- 
 ests, and to report them for taxation. 58 And when prop- 
 erty has been omitted, by mistake, fraud, or concealment, 
 from the first appraisement, another will be allowed. 59 
 
 Under a recent statute 60 passed in New York, in cases 
 of this character, where there has been an assessment be- 
 fore the surrogate, another assessment may be allowed by a 
 justice of the supreme court, upon the application of the 
 
 s* In re Dreyer, N. Y. Law J. Feb. 17, 1S92. 
 
 ss Appendix, I. a, e, Laws 1SS7, § 13; Laws 1S92, c. 399, § 11. 
 
 66 Appendix, X., § 11. 
 
 5 7 Appendix, III., § 12. 
 
 es in re Stewart (Surr.) 10 N. Y. Supp. 15; Id., 131 N. Y. 274, 30 N. 
 E. 1S4. 
 
 ss Com. v. Freedley, 21 Pa. St. 36; In re Astor, supra; In re 
 Smith's Estate (Surr.; 1893) 23 N. Y. Supp. 762, distinguishing In re 
 Wolfe, 137 N. Y. 205, 33 N. E. 156. 
 
 so Laws 1895, c. 556, amending section 13, Laws 1892, c. 399. See 
 Appendix, I. 
 
 (215)
 
 § 52 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 state comptroller, within two years from the first assess- 
 ment. 
 
 The appraiser should report vested, though defeasible, in- 
 terests, and so much of the residuary estate as was ascer- 
 tainable at the time of the appraisement. Should the re- 
 siduary estate be increased by the receipt of additional as- 
 sets, or by other defeasible interests falling into and becom- 
 ing a part of the same, another appraisement may then be 
 had. 61 
 
 § 52. Land and Personal Estate, and Where 
 Appraised — "Fair Market Value." 
 
 The fact that these statutes require the property to be ap- 
 praised, in order to fix the amount of the tax, does not make 
 the tax imposed upon the appraised value unconstitutional, 
 as a property tax, because it is the privilege of taking by 
 will or descent which is taxed, and the appraisement is 
 merely a means of ascertaining the value of such privilege. 62 
 Under the Pennsylvania statute, the appraisement and pro- 
 ceedings thereunder must be had in the county where the 
 letters testamentary and of administration have been is- 
 sued, but the appraiser may legally appraise land situate 
 in other counties. 63 In Maryland the statute 6 * provides 
 for the appointment of two appraisers where there is land 
 in different counties. But, where there are several tracts 
 of land to be valued, they should be valued separately, as 
 occupied by the tenants; 65 and the appraisement is made, 
 
 6i In re Stanford (May 6, 1898) 9 N. Y. Law J. p. 327. 
 
 ea Wallace v. Myers, 38 Fed. 1S4; In re McPherson, 104 N. Y. 306, 
 10 N. E. 6S5; In re Swift, 137 N. Y. 77, 32 N. E. 1096. See chapter 
 2, § 8. 
 
 es stinger v. Com., 26 Pa. St. 429, 431. 
 
 6 4 Appendix, VIII., § 108. 
 
 6 5 in re McKean's Estate, 29 Pa. Law J. (N. S.) 299. 
 (216)
 
 Oh. 5] APPRAISER AND APPRAISEMENT. § 52 
 
 as we have seen, in the same manner as land is assessed 
 for general taxation purposes. 66 
 
 In New York 67 the appraiser appointed by the surrogate 
 first acquiring jurisdiction may appraise real estate in bulk, 
 though it be situate in different counties. 68 In ascertaining 
 the value of property, the appraiser is not bound by a valu- 
 ation fixed upon by a general appraisement for the purpose 
 of filing an inventory, where the state was not a party to 
 the proceeding. 69 
 
 But it seems that if the property has no salable value, nor 
 any actual or potential annual value, at the time when the 
 succession accrues, it is not capable of being assessed, 70 
 and neither possible increase nor diminution in the value of 
 the property after the succession accrues is dealt with. 71 
 
 The interest of an infant decedent in the proceeds of the 
 sale of land in partition is not exempt from taxation as real 
 estate under the act of 1892. 72 
 
 The existence of a partition suit will not prevent the ap- 
 praisement of the property sought to be partitioned, nor 
 does the sum realized upon a sale in such suit fix the value 
 for the purpose of taxation under the inheritance tax. 73 
 
 Where real estate passes to a person who is subject to 
 
 •« See cases supra, section 50; In re McKean's Estate, supra; Com. 
 V. Freedley, 21 Pa. St. 36. 
 «7 Appendix, I. a, Laws 1887, §§ 15, 17. 
 « a In re Keenan's Estate (Surr.) 5 N. Y. Supp. 200. 
 
 6 9 In re Pinckney (Nov. 19, 1894) 12 N. Y. Law J. 453. 
 
 to Attorney General v. Earl of Sefton, 11 H. L. Cas. 257, 269. 
 
 7i See post, § 55, and Com. v. Freedley, 21 Pa. St. 36; Stinger v. Com.. 
 26 Pa. St. 425; In re Miller's Estate, 45 Leg. Int. 175; In re Bird's 
 Estate (Surr.) 11 N. Y. Supp. 895. But see Attorney General v. Dar- 
 dier, 11 Q. B. Div. 16; In re Stewart's Estate (Surr.) 10 N. Y. Supp. 
 15; Id., 131 N. Y. 274, 30 N. E. 184; In re Vassar, 127 N. Y. 8, 27 
 N. E. 394; In re Floyd (March 3, 1S91) 4 N. Y. Law J. 1378. 
 
 72 Chapter 399, § 2; In re Stiger (Suit.) 28 N. Y. Supp. 163. 
 
 7 3 in re Lederer, 5 N. Y. Law J. 957. 
 
 (217)
 
 § 52 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 the tax, the order of assessment must describe the same, so 
 that in issuing receipts the county treasurer may designate 
 on what real property the tax has been paid. 74 
 
 Real estate which has once paid the tax is not liable to 
 taxation again, although it sold subsequently at a much 
 higher rate. 75 
 
 Where there is no evidence as to the value of an asset 
 (i. e. a claim upon which interest has been paid), it must be 
 appraised at par. 76 
 
 Under general tax laws, it has been held that dividends 
 are not proof of the earning power of corporate property, 
 but they are competent evidence upon the question what is 
 the earning power of corporate property, which is a feature 
 to be considered in valuing such property for the purposes 
 of taxation. It is error to> base an assessment of the prop- 
 erty of a corporation on the market value of the corporate 
 stock. 77 
 
 In New York the statute requires the appraiser to ap- 
 praise the property, both real and personal, at its "fair 
 market value" 78 or "fair and clear market value." 79 These 
 phrases would seem to be synonymous, 80 and to require all 
 just debts and liabilities due and owing by decedent at the 
 
 74 Laws 1887, c. 713, § 23; Laws 1892, c. 399, 8 16; In re Jones, 7 
 N. Y. Law J. 578. 
 
 75 in re Russell's Estate (1886) 19 Wkly. Notes Cas. 256. 
 7 6 in re Pinckney, 12 N. Y. Law J. 453. 
 
 7 7 People v. Barker (1894) 81 Hun, 25, 30 N. Y. Supp. 586. See Id. 
 (Sup.) 32 N. Y. Supp. 990, citing Union Trust Co. Case, 126 N. Y. 
 433, 27 N. E. 818. 
 
 7 8 See Appendix, I. a, e, Laws 1887, c. 713, § 13; Laws 1892, c. 
 399, §§ 11, 12. 
 
 79 Laws 1887, c. 713, § 2; Laws 1892, c. 399, § 11. 
 
 so In re Astor, 6 Dem. Sur. 411; In re Leavitt's Estate (Surr.) 4 N. 
 Y. Supp. 179; In re Bird's Estate (Surr.) 11 N. Y. Supp. 895. See In 
 re Cooper's Estate, 127 Pa. St. 440, 17 Atl. 1094; Com. v. Freedley, 
 21 Pa. St. 33. In Connecticut it is "the actual value" or "actual mar- 
 
 (218)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 52 
 
 time of his death to be deducted from the market value of 
 the estate. 81 
 
 The appraiser should not deduct a mortgage upon for- 
 eign real estate belonging to decedent, it appearing that 
 the land was worth above the face of the mortgage. 82 
 
 The court said: 
 
 "The executors claim that being responsible for the 
 amount of the mortgage, as a debt of the testator, there 
 should be a deduction from the amount of the estate of one- 
 half of his debt, and claim that there is no provision of stat- 
 ute in New Jersey similar to that in this state, which char- 
 ges the heir or devisee with the burden of the mortgage. 
 It is elementary that, where a person claims under a for- 
 eign law, that foreign law must be established by compe- 
 tent evidence, as any other fact, and in the absence of proof 
 the court is bound to presume that the law is the same as 
 prevails in this state. There was no proof before the ap- 
 praiser as to the law of the state of New Jersey. In this 
 state the mortgagee must exhaust his remedy against the 
 realty, and, so far as the personalty is concerned, it is exon- 
 erated from the payment of the mortgage debt. But, even 
 if the law were established as claimed, the surrogate would 
 certainly require proof that the property would not be suf- 
 ficient to pay the amount of the mortgage debt 
 
 "The proof as above stated would negative such a prop- 
 
 ket value." Laws Conn., Appendix, VII., §§ 2, 12. In Maryland it 
 is tbe "clear value," "appraised value," "true value." Laws Md.. 
 Appendix, VIII. a, §§ 102, 104, 112. 
 
 si Orcutt's Appeal, 97 Pa. St. 175; Avery's Estate, 34 Pa. St. 204; 
 Strode v. Corn., 52 Pa. St. 181; Rubincam's Estate, 38 Leg. Int. 261; 
 Kaas' Estate, 45 Leg. Int. 217; Cullen's Estate, 26 Wkly. Notes Cas. 
 216; Com. v. Coleman, 52 Pa. St. 473; Cooper's Estate, 127 Pa. St. 
 435, 17 Atl. 1096; In re Enston's Will, 113 N. Y. 181, 21 N. E. 87. 
 See Mellon's Appeal, 114 Pa, St. 569, 8 Atl. 183; Williamson's Estate, 
 49 Leg. Int. 106. 
 
 «2 in re Colhoun, 7 N. Y. Law J. 505. 
 
 (219)
 
 § 52 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 osition, * * * the property being worth more than the 
 amount of the mortgage. The appraiser's report is con- 
 firmed." 83 
 
 Under the New York statutes 84 providing that an heir 
 or devisee shall, out of his own property, satisfy any mort- 
 gage to which the land descended or devised is subject un- 
 less the will directs otherwise, the personal estate of a tes- 
 tator who devised land subject to mortgage is not liable for 
 the mortgage debt, to the exoneration of the land, unless 
 the will so provides; and the amount of the mortgage will 
 therefore be deducted from the value of the land, in assess- 
 ing the transfer tax. 85 
 
 While, in New York, it has been customary for appraisers, 
 under these acts, to do so, there is nothing in the language 
 of the statutes expressly authorizing the appraiser, in his 
 report, to deduct from the value of the taxable estate of a 
 decedent any debts of decedent, expenses of administration, 
 funeral expenses, or commissions of executors. It is held, 
 under the act of 1892, and prior acts, that the appraiser 
 has no power to deduct these items. 86 
 
 That which is to be reported by the appraiser for the pur- 
 pose of the tax is the value of the interest passing to the 
 legatee under the will, without any deduction for any pur- 
 pose, or under any testamentary direction. 87 
 
 Neither is such power apparently conferred upon the sur- 
 rogate. In Re Mill ward 88 the surrogate said: "It can- 
 
 8 3 Followed in Re Russak, 10 N. Y. Law J. 530. 
 
 84 1 Rev. St. p. 749, § 4. 
 
 8 5 in re Kene (Suit.) 29 N. Y. Supp. 1078. 
 
 se in re Millward's Estate (Surr.; 1894) 27 N. Y. Supp. 2S6; citing 
 In re Swift, 137 N. Y. 77, 32 N. E. 1096. See, also, on this point, Id., 
 16 N. Y. Supp. 193, per Ransom, S., affirmed 19 N. Y. Supp. 292; 
 In re Ludlow's Estate (1893) 4 Misc. Rep. 594, 25 N. Y. Supp. 989. 
 But, contra, In re Gould (1895) 13 N. Y. Law J. 7S1. 
 
 8 7 in re Swift, supra. 
 
 8 8 id. 
 
 (220)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 52 
 
 not be discovered that the act anywhere expressly author- 
 izes the surrogate to deduct from the appraised value any 
 debts, funeral expenses, commissions of executors, or ex- 
 penses of administration; and it is therefore fairly ques- 
 tionable whether the legatees do not take cum onere, as the 
 tax is not put upon what the legatee may get, but upon the 
 value of the estate at the point or period of the transfer, 
 which is the death of the testator." 89 The court held that 
 it might fairly be inferred that the legislature intended that 
 debts owing by decedent should be deducted from the value 
 of the estate, and this could be done by the surrogate on 
 appeal from the appraisers' report. 90 A contrary view of 
 this question has been recently taken by the surrogate in 
 New York county. 91 The appraiser should reduce the value 
 of the personal estate by the amount of any taxes or assess- 
 .ments due at decedent's death. 92 
 
 An appraiser cannot deduct from the personalty the 
 amount of a mortgage upon real estate belonging to dece- 
 dent situate in another state, where the law of that state is 
 not proved, and where it appears that the property is worth 
 more than the amount secured by the mortgage. 93 
 
 Regarding the commissions of executors, and expenses of 
 administration, they accrue and only become chargeable, in 
 New York, upon the final accounting of the executors. 94 
 They are not, therefore, it would seem, debts of decedent 
 existing at death, when, except in cases of future or con- 
 tingent estates, the tax generally becomes due. 
 
 It is therefore questionable whether such items can be 
 
 so See In re Vassar, 127 N. Y. 8, 27 N. E. 394. 
 so in re Millward and In re Ludlow, supra. 
 9i In re Gould, supra. 
 
 92 in re Pinckney, 12 N. Y. Law J. 453. 
 
 93 in re Colhoun, 7 N. Y. Law J. 505. In re Russak, 10 N. Y. Law 
 J. 530. 
 
 94 Bliss' Code N. Y. (4tn Ed.) § 2730, and cases cited. 
 
 (221)
 
 § 52 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 deducted by the appraiser, or allowed by the surrogate, at 
 least until there has been a final accounting, because only 
 then can they be legally and definitely ascertained. It has 
 therefore been the practice, under the New York statutes, 
 to leave these items for determination to the final account, 
 when, if necessary, another appraisement can be had. 95 
 
 It seems that the amount in value of the estate or prop- 
 erty to be taxed should be fixed with mathematical certain- 
 ty, and not by mere estimate or approximation. This is 
 easily done on general or specific legacies, but on those em- 
 braced in a residuary clause such amount subject to the 
 tax, if any, cannot be fixed until an accounting shall have 
 been had, if debts, funeral expenses, commissions of execu- 
 tors, and expenses of administration are to be deducted. 96 
 
 Whether such items are legally deductible from the tax- 
 able estate in any event is a question which does not seem 
 to have been determined under the New York statutes. 
 They have been held deductible, however, in a recent case 97 
 in the county of New York. It has been held, however, 
 that the claim of the state for taxes due at death cannot 
 be postponed until final accounting of the executors. 98 
 
 In Pennsylvania the tax accrues at decedent's death, un- 
 less enjoyment is postponed by a life estate in another, and 
 except, in case of such postponed enjoyment, the value at 
 the time of the testator's or grantor's death is the basis 
 for calculating the amount of the tax. 99 
 
 The tax is to be assessed upon the clear value of the prop- 
 
 9 5 in re Havens, 3 N. Y. Law J., Aug. 1, 1890, p. 900; In re Meyer, 
 5 N. Y. Law J. May 26, 1S91. p. 532; In re Hope, 8 N. Y. Law J. 
 1164; In re Sidell, 1 N. Y. Law J. March 18, 1893; In re Mill ward, 
 supra. Contra, In re Gould (June 18, 1895) 13 N. Y. Law J. 781. 
 
 »6 in re Millward, supra. 
 
 »7 in re Gould, supra. 
 
 ss in re Vassar, 127 N. Y. 8, 27 N. E. 394. 
 
 »s In re Lines' Estate (1893) 155 Pa. St. 378, 26 Atl. 728. 
 (222)
 
 Oil. 5] APPRAISER AND APPRAISEMENT. § 52 
 
 erty, and what that value may be can be ascertained only 
 by allowing for all lawful charges. 100 
 
 The register or appraiser has authority to pass upon the 
 reasonableness of the charges of settling the estate in or- 
 der to determine its value. 101 
 
 Where the parties in interest assent to the correctness of 
 an estimate of the expenses of settling the estate, the regis- 
 ter must accept such estimate, unless there is ground for 
 the suspicion of fraud. 102 Under the English law, in valu- 
 ing a succession to lands vested by will in trustees, the 
 cestui que trust cannot deduct, as "necessary outgoings," 
 reasonable expenses of management incurred, independent- 
 ly of his control, by the trustees under an authority given 
 hy will. 103 
 
 Pollock, C. B., said: 
 
 "It might be said that, if a man is under the absolute 
 necessity of incurring certain expenses before he can get 
 that which is bequeathed to him, he ought to be allowed the 
 deduction in respect of them. But * * * the crown 
 ought not to receive less because a particular individual 
 receives more. If one man has left him £100 a year, — the 
 rent of a house, for example, which he can collect in the 
 next street, — he pays upon that £100 a year. If instead of 
 the rent being capable of collection in the next street, it is 
 to be collected a hundred miles off, * * * no deduction 
 can be made from the value of the succession. 
 
 "The duty depends upon the value of the property, not 
 with respect to the expenses * * * in the collection, 
 but with respect to the property itself." 
 
 In Commonwealth's Appeal 104 the question arose in 
 
 100 in re Cullen's Estate (1891) 142 Pa. St. IS, 21 Atl. 781. 
 ioi in re Cullen's Estate, supra. 
 
 102 in re Cullen's Estate, 8 Pa. Co. Ct. R. 234. 
 
 103 in re Earl Cowley, L. R. 1 Exch. 288. 
 
 104 In re Cooper's Estate, 127 Pa. St. 435, 17 Atl. 1094. 
 
 (223)
 
 § 53 APPRAISER AND APPRAISEMENT. [Cll. 5 
 
 Pennsylvania as to the meaning of words requiring the tax 
 to be imposed "on the clear value of such estates." The 
 court said: "The appraiser was of the opinion that be- 
 cause the real estate descended intact to the collateral heirs 
 the tax must be assessed upon the valuation of the real es- 
 tate without abatement of the debts owing by the decedent 
 at the time of his death. This, however, would exclude any 
 room for the application of 'clear value,' and is inconsistent 
 with the legislative intent in imposing the tax. This tax 
 at first became a lien due upon the death of the decedent. 
 His debts were then a lien against his real estate, and the . 
 law authorized the land to be sold, if necessary, for their 
 payment. The surplus only was liable to the tax. It is to 
 be assessed not upon the pecuniary value of the land com- 
 ing to the tenant in remainder, but upon the clear value of 
 the estate passing from the person who may die seised 
 thereof, and the probable duration of the preceding life 
 estate." 105 
 
 The tax is imposed on what remains for distribution after 
 the expenses of administration, debts, and rightful claims 
 of third parties are deducted. 108 
 
 § 53. Life Estates, Annuities, Legacies, and 
 Terms of Years. 107 
 
 Under the New York statute of 1892, 108 where the tax- 
 able interest shall consist of an estate, income, or interest 
 for a term of years, or for life, or determinable upon any 
 future or contingent estate, or shall be a remainder, or re- 
 
 ios See, also, chapter 4, § 49. 
 
 loe in re Lines' Estate (1893) 155 Pa. St. 379, 26 Atl. 72S. 
 
 107 Constitutional rules considered with reference to the valuation 
 of life estates, etc., William's Case, 3 Bland (Md.) 186, 227. 
 
 los See, also, Laws 1887, c. 713, §§ 2, 13. And see In re Robertson, 
 5 Dem. Sur. 92; Appendix, I. e, Laws 1892, c. 399, § 11 et seq. 
 (224)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 53 
 
 version, or other expectancy, real or personal, the entire 
 property or fund by which such estate, income, or interest 
 is supported, or of which it is a part, shall be appraised im- 
 mediately after such transfer, or as soon thereafter as may 
 be practicable, at the fair and clear market value thereof at 
 that time; provided, however, that when such estate, in- 
 come, or interest shall be of such a nature that its fair and 
 clear market value cannot be ascertained at such time, it 
 shall be appraised in like manner at the time when such 
 value first became ascertainable. The value of every future 
 or contingent or limited estate, income, interest, or annuity 
 dependent upon any life or lives in being shall be deter- 
 mined by the rule, method, and standard of mortality and 
 value employed by the superintendent of insurance in as- 
 certaining the value of policies of life insurance and annu- 
 ities, for the determination of liabilities of life insurance 
 companies, except that the rate of interest for computing 
 the present value of all future and contingent interests or 
 estates shall be 5 per centum per annum. 
 
 The superintendent of insurance 109 shall, on the applica- 
 tion of any surrogate, determine the value of any such fu- 
 ture or contingent estates, income, or interest, limited, con- 
 tingent, dependent, or determinable upon the life or lives 
 of persons in being, upon the facts contained in any such 
 appraiser's report, and certify the same to the surrogate; 
 and his certificate shall be conclusive evidence that the 
 method of computation adopted therein is correct. The 
 state is thus afforded a standard and uniform method un- 
 der this statute of appraising estates liable to taxation. 
 
 In Connecticut 110 the value of annuities and life estates 
 is to be determined by the actuaries' combined experience 
 tables, and 5 per centum compound interest. 
 
 109 Laws 1892, c. 399, § 13. no Appendix, VII., § 12. 
 
 LAW INHER. 15 (225)
 
 § 53 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 The Massachusetts statute 111 provides that the present 
 worth of a remainder must be ascertained by deducting the 
 value of the life estate from the appraised value of the prop- 
 erty, and that the value of the life estate is to be deter- 
 mined by actuaries' tables. 
 
 Under these provisions, where a wife left to her husband 
 a life estate in $10,000, not taxable, at his death to go to E., 
 the tax upon the remainder must be computed, and deduct- 
 ed from the principal sum; and although the tenant for 
 life will have lost the income on the amount so deducted, 
 such a loss must be borne by him as legatee in remainder, 
 and will be held to have been so intended. 112 
 
 In Maryland, 113 where there are annuities, life estates, or 
 remainders liable to the tax, the orphans' court is given 
 power to determine, in its discretion, at such time as it 
 thinks proper, the proportion of the tax a party shall pay; 
 and its judgment is final and conclusive, but it would seem 
 that this means only as to the valuation, and not as to any 
 question of liability to the tax. 114 
 
 In Pennsylvania 115 the appraisement of life estates, an- 
 nuities, and terms of years is made by the official appraiser 
 appointed by the register of wills, and he is required to 
 make a fair and conscionable appraisement of such es- 
 tates. 116 
 
 But no system or rule for the purpose of ascertaining the 
 
 in Appendix, IV., Laws 1891, c. 425, §§ 2, 13. 
 
 112 Minot v. Winthrop (1894) 162 Mass. 113, 38 N. E. 512. 
 
 us Appendix, VHT., § 115. 
 
 H4 Tyson v. State, 28 Md. 577. 
 
 us Statute, Appendix, III., § 12. Appraiser's duties denned with ref- 
 erence to life estates and annuities, In re Kaas' Estate, 45 Leg. Int. 
 217. 
 
 us In re Wharton's Estate, 10 Wkly. Notes Cas. 106; In re Gold- 
 stein's Estate, 16 Phila. 319; In re Kaas' Estate, supra; In re 
 Cooper's Estate, 127 Pa. St. 435, 17 Atl. 1094. 
 (226)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 53 
 
 value of such, estates exists in that state, and the question 
 seems to be left entirely to the discretion of the register 
 of wills. Generally, however, the Carlisle tables are adopt- 
 ed as the basis of valuation. 117 
 
 Where testatrix bequeathed a specific sum in trust to 
 invest, and, after deducting all proper costs and charges 
 thereon, to pay the interest and income thereof to her niece 
 for life, such a bequest presupposes a deduction of the ex- 
 penses of the trust, the commissions of the trustees, and 
 other charges which may lawfully be incurred; thus dimin- 
 ishing the amount to be paid the cestui que" trust annually. 
 These expenses are to be considered upon testimony to be 
 submitted to the appraiser by the executor or life tenant in 
 arriving at a fair and conscionable appraisement of the cash 
 value of the annuity, and it is then for the appraiser to 
 determine the probable net income of the bequest that the 
 tax may be imposed thereon; 11S and though, by the terms 
 of the will, it may become necessary to deplete the principal 
 of the fund, to pay life annuities, making it impossible to 
 determine the present cash value of the annuities, that fact 
 is immaterial as regards the question of appraisement, as 
 the property is to be taken at its "clear market value" at 
 the testator's death. 119 
 
 Where an estate for life is left to husband and wife as 
 tenants by the entirety, and the wife is not exempt by stat- 
 ute, her interest, being certain and definite, and made as- 
 signable by law, and subject to partition, 120 is liable to as- 
 
 117 In re Goldstein's Estate, 16 Phila. 319; In re Kaas' Estate, 45 
 Leg. Int. 217. 
 
 us in re Kaas' Estate, and cases cited, supra. 
 
 us In re Leavitt's Estate (Surr.) 4 N. Y. Supp. 179; In re John- 
 eon, 6 Dem. Sur. 146; In re Bird's Estate (Surr.) 11 N. Y. Supp. 895; 
 In re Vassar, 127 N. Y. 8, 27 N. E. 394. But see In re Clark's Estate 
 <Surr.) 5 N. Y. Supp. 199. 
 
 120 Laws N. Y. 18S0, c. 472. 
 
 (227)
 
 § 53 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 sessment and taxation during the lifetime of the hus- 
 band. 121 
 
 Where there are contingent annuities, 122 an appraisement 
 thereof was formerly allowed upon decedent's death, 123 if 
 the value of such annuities could then be ascertained; but 
 now, under recent decisions, they can only be appraised and 
 taxed when the contingency occurs, and they vest in posses- 
 sion or enjoyment. 124 
 
 So the value of a bequest to testator's widow, for life, or 
 until she marries again, cannot be determined, for the pur- 
 pose of taxation under the transfer tax law, until the ter- 
 mination of the widow's estate by death or marriage. 
 
 "While," said the court, "we have an established method 
 for ascertaining the value of the life estate of a widow, 
 based upon an arbitrary rule as to probable time of death, 
 there is lacking any such rule to enable us to approximate 
 the period when, if at all, she may remarry. That defies all 
 calculation. Hence the value of her estate, or of the re- 
 mainder, cannot now be ascertained, for the purpose of the 
 assessment of the tax." 125 
 
 Under the New York statutes 128 in existence prior to the 
 
 . 121 In re Higgins' Estate, 36 N. Y. Daily Reg. 906, distinguishing 
 In re Le Fever, 5 Dem. Sur. 184; In re Hopkins, 6 Dern. Sur. 1. But see 
 O'Connor v. McMahon, 54 Hun, 66, 7 N. Y. Supp. 225. See, also, as to 
 tenants by the entirety, Stelz v. Schreck (Sup.) 10 N. Y. Supp. 790; 
 Beach v. Hollister, 3 Hun, 519. 
 
 122 See section 54, subd. d, post. 
 
 123 in re Clark's Estate (Suit.) 5 N. Y. Supp. 199. 
 
 12* See In re Stewart, 131 N. Y. 274, 30 N. E. 184; In re Benjamin, 
 N. Y. Daily Reg. Dec. 7, 1889, p. 906; In re Le Fever, 5 Dem. Sur. 
 184; In re Hopkins, 6 Dem. Sur. 1. See chapter 6, § 58, subds. c, b.; 
 In re Cager, 111 N. Y. 343, 18 N. E. S66. See In re Curtis, 142 N. 
 Y. 219, 36 N. E. 887; In re Roosevelt's Estate, 143 N. Y. 120, 38 N. 
 E. 281; In re Hoffman's Estate, 143 N. Y. 330, 38 N. E. 311; Tal- 
 madge v. Seaman, 85 Hun, 242, 32 N. Y. Supp. 906, reversed as In 
 re Seaman (Oct. 8, 1895; Ct. App.) 41 N. E. 401. 
 
 125 Coffin, S., In re Millward (Suit.; 1894) 27 N. Y. Supp. 288. 
 
 126 Appendix, I. a, Laws 1887, c. 713. 
 (228)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 53 
 
 act of 1892, a legacy which might be valued at less than 
 $500 was exempt, the word "estate," in the acts, being held 
 to mean the property passing to the legatee, and not the 
 estate of the testator. 127 Under this clause of the statute 
 of 1887, it was held that a cash legacy of |500, which is 
 not legally payable until a year after decedent's death, is 
 appraisable and taxable at its full value, notwithstanding 
 the executor has a year in which to pay it. 128 
 
 In holding that this fact did not prevent the assessment 
 and taxation of such legacy, at its full value at the time of 
 death, Surrogate Ransom 129 said: "Thus we have seen 
 that the legislature plainly distinguished between a mon- 
 eyed legacy and one of other property, and find authority 
 for the construction which has been given to this act by me 
 in several cases heretofore, — that a moneyed legacy need 
 not be appraised. In fact, the meaning of the act itself is 
 an appraisement by the legislature of a moneyed legacy at 
 its face value at the date of decedent's death. Legacies of 
 property, not in money, are to be appraised at their fair, 
 clear market value as of the date of decedent's death, not 
 as of one year thereafter, when the legacy is payable and 
 its delivery may be enforced. It is said that the fair, clear, 
 market value of the property subject to the tax is what it 
 will be worth when the legatee is entitled to receive it and 
 may compel its delivery to him. This construction of the 
 
 127 in re Cager's Will, supra; In re Howe, 112 N. Y. 100, 19 N. E. 
 513; In re Sherwell's Estate, 125 N. Y. 376, 26 N. E. 464; In re 
 Sterling's Estate (Surr.) 30 N. Y. Supp. 386. The words "estate" 
 and "property," under the acts of 1892, now refer to the aggregate es- 
 tate of the decedent, and not to the share of the legatee. In re Hoff- 
 man's Estate, 143 N. Y. 330, 38 N. E. 311; In re Hall, 34 N. Y. Supp. 
 616: chapter 3, § 41. 
 
 128 in re Pond, N. Y. Daily Reg. May 25, 18S9; In re Bird's Estate 
 (Surr.) 11 N. Y. Supp. 895; In re McGowan's Estate, 3 N. Y. Law J. 
 888. Contra, In re Peck's Estate (Suit.) 9 N. Y. Supp. 465. 
 
 129 in re Bird, supra. 
 
 (229)
 
 § 53 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 act works its repeal. Moreover, it is contrary to its very 
 letter. The soundness of this proposition is shown by a 
 consideration of the rights of parties in case of property 
 other than money, which had appreciated in value since de- 
 cedent's death; for instance, stocks." The rule that such 
 $500 legacies are taxable at their face value is now settled 
 under the act of 1887. 130 
 
 In Pennsylvania, as we have already seen, an "estate" of 
 less than |250 is exempt, 131 but under this provision of the 
 statute, where the aggregate estate of the testator exceeds 
 $250, and there are legacies of less than that amount, they 
 are appraisable and taxable, 132 upon the theory that the 
 word "estate" refers to the general property of the decedent, 
 and not to the interest of the legatee, a result which was 
 contrary to the construction placed upon a similar clause in 
 the New York statute of 1887, 133 but now, under the New 
 York act of 1892, 134 it is held that the words "estate" and 
 "property," used in the act, refer to the general estate of the 
 testator, and not to specific legacies or shares; and where 
 the devise is to lineal heirs, and the estate is over $10,000 
 in value, and personalty, it is taxable, whether the share of 
 the legatee is more or less. 135 The same rule is applied 
 where the legacy is to collateral heirs, and the estate of de- 
 cedent is of the value of $500 or more; the share of the 
 legatee is taxable though of less value than the sum of 
 
 As a general rule, legacies given in payment for services 
 
 i3o in re Sherwell's Estate, 125 N. Y. 376, 26 N. E. 464. 
 
 isi Chapter 3, § 41. 
 
 132 Com. v. Boyle, 2 Del. Co. Rep. 335. 
 
 183 Chapter 3 § 41. 
 
 184 Appendix, I. 
 
 is 5 in re Hoffman's Estate, 143 N. Y. 327, 38 N. E. 311. 
 ise Laws 1892, c. 399, § 22; In re Ludlow's Estate (Surr.) 25 N. Y. 
 Supp. 989. 
 (230)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 54 
 
 rendered, or for just debts owing by the decedent, are not 
 appraisable, as they are not liable to taxation. 137 The fact 
 that a legacy has not been paid, or its payment demanded, 
 by the legatee, does not prevent its appraisement where 
 there is no proof that the legacy has been renounced. 138 
 
 § 54. Remainders, Contingent, and Future 
 Estates. 
 
 (a) Under Acts of Congress. 
 
 Under the acts of congress in force until 1870, the right 
 to appraise or tax contingent estates or remainders did not 
 accrue until such estates vested in the actual possession and 
 enjoyment of the tenant in remainder. 139 
 
 (b) Maryland and Connecticut. 
 
 By the Maryland statute 140 the court having jurisdiction 
 over the collateral inheritance tax is empowered, in its dis- 
 cretion, and at such time as it shall think proper, to deter- 
 mine what proportion the party entitled to the contingent 
 interest shall pay of the tax, and its judgment is to be final 
 and conclusive. Such court is also empowered to determine, 
 in its discretion, from time to time, after the determination 
 of the preceding estate, and, as the remainder of said estate 
 shall vest in the party entitled in remainder or reversion, 
 what proportion of the residue of the tax shall be paid by 
 such parties in whom the estate shall so vest. 
 
 137 i n re Rielly's Estate, 3 N. Y. Law J. 796. See In re Doty's 
 Estate (Surr.) 27 N. Y. Supp. 653; In re Sidell, N. Y. Law J. March 
 9, 1893; In re Meyer (May 26, 1891) 5 N. Y. Law J. 532; In re Hnlse 
 (Surr.) 15 N. Y. Supp. 770; In re Ludlow's Estate (Surr.) 25 N. Y. 
 Supp. 989; chapter 4, § 49; chapter 6, § 61. 
 
 iss in re Raymond, 12 N. Y. Law J. 453. 
 
 139 See chapter 6, § 58b; Wright v. Blakeslee, 101 U. S. 174; Clapp 
 v. Mason, 94 U. S. 589; Mason v. Sargent, 104 U. S. 6S9; U. S. v. 
 Hazard, 8 Fed. 380; U. S. v. Brice, Id. 381. 
 
 140 Appendix, VIII., § 115. 
 
 (231)
 
 § 54 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 The clause of the statute which declares that the judg- 
 ment of the orphans' court shall be final and conclusive ap- 
 plies only to the proportion of the tax which it is the duty 
 of the said court to assess among the parties interested iD 
 the estate. 141 
 
 In Connecticut the value of such contingent interest is as- 
 certainable by the actuaries' combined experience tables and 
 5 per cent, compound interest. 142 
 
 (c) Pennsylvania Statute. 
 
 By the statute of this state, 143 now in force, it is provided 
 that in all cases where there has been or shall be a devise, 
 descent, or bequest to collateral relatives or strangers liable 
 to the collateral inheritance tax to take effect in possession 
 or coming into the actual enjoyment after the expiration of 
 one or more life estates or a period of years, the tax on such 
 estate shall not be payable, or interest begin to run, until 
 the person or persons liable for the same shall come into 
 actual possession of such estate by determination of the es- 
 tate for life or years, and the tax shall be assessed upon the 
 value of the estate at the time the right of possession ac- 
 crues to the owner as aforesaid; provided, that the owner 
 shall have the right to pay the tax at any time prior to his 
 coming into possession, and in such cases the tax shall be 
 assessed on the value of the estate at the time of the pay- 
 ment of the tax after deducting the value of the life estate 
 or estate for years; and provided further, that the tax on 
 real estate shall remain a lien on the real estate upon which 
 the same is chargeable until paid, 144 and the owner of any 
 
 141 Tyson v. State, 54 Md. 577. 
 
 142 Appendix, III., § 12. 
 
 143 Laws Pa. 1887, Appendix, III., § 3. 
 
 144 The clause in the statute relating to the lien has been declared 
 unconstitutional, or at least inoperative so far as foreign real estate 
 is concerned. See In re Bittmger's Estate, 129 Pa. St. 338, 18 Atl. 
 132; also chapter 2, § 15. See, also, as to lien, chapter 8, § 67. 
 
 (232)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 54 
 
 personal estates shall make a full return of the same to the 
 register of wills in the proper county within one year from 
 the death of the decedent, and within that time enter into 
 security for the payment of the tax to the satisfaction of 
 such register; and, in case of failure so to do, the tax shall 
 be immediately payable and collectible. 
 
 By further provision 145 it is made the duty of the register 
 of wills in the county in which letters testamentary or of 
 administration are granted to appoint an appraiser as often 
 as, and whenever, occasion may require, to fix the valuation 
 of estates which are or shall be subject to collateral inherit- 
 ance tax, and it shall be the duty of such appraiser to make 
 a fair and conscionable appraisement of such estates. 
 
 This statute fails, however, to provide any standard for 
 determining the value of contingent interests or remainders, 
 and, as under the old law, the method of valuation seems to 
 be left to the arbitrary discretion of the register of wills in 
 each county. As we have seen, the Carlisle tables are the 
 guide commonly in use. 146 
 
 The portions of the early statutes of Pennsylvania 147 con- 
 cerning estates in remainder, and the appraisement thereof, 
 are referred to in the notes. 148 They are of more or less 
 value in arriving at an understanding of the condition of the 
 law of that state with reference to the appraisement and 
 taxation of estates in remainder, 149 because, while the law 
 
 1*5 Section 12, Pennsylvania Statute, Appendix. 
 
 1*6 Goldstein's Estate, 16 Phila. 319; Kaas' Estate, 45 Leg. Int. 
 217. 
 
 1*7 See Del Busto's Estate, 23 Wkly. Notes Cas. Ill, where these 
 statutes are collated and explained, per Penrose, J.; Mellon's Ap- 
 peal, 114 Pa. St. 572, 8 Atl. 183. 
 
 lis For act of 1826, see chapter 6, § 58, subd. d. 
 
 149 See 1 Purd. Dig. (10th Ed.) 215, 216. By Laws 1849, p. 579, § 
 13, it was provided: "Where any person or persons shall bequeath 
 or devise any estate, real or personal, to a father, widow or other 
 
 (233)
 
 § 54 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 since the act of 182G has undergone considerable modifica- 
 tion with reference to the taxation of remainders and con- 
 tingent estates, so far as the act of 1887 is concerned, it has 
 been expressly adjudged that that statute is, at most, but 
 a mere codification of the former statutes and decisions of 
 the supreme court; and, so far as it has been construed, it 
 has been held to make little, if any substantial, change in 
 the prior laws. How far this is so, as regards matters re- 
 lating to the appraisement, remains to be determined. 150 
 
 person during life, and the remainder over to collateral heirs at 
 their decease, immediately after the death of the testator, the estate 
 so granted shall be appraised in the manner hereinbefore provided, 
 and after deducting the valuation of said life-estate the collateral 
 inheritance tax on the remainder shall be immediately due and pay- 
 able over to the register of wills of the proper county," etc. By 
 Laws 1850, p. 170, § 1, it was provided that "in all cases where there 
 has been or shall be a devise, descent or bequest to collateral rela- 
 tives or strangers liable to the collateral inheritance tax, to take 
 effect in possession or to come into actual enjoyment after the ex- 
 piration of one or more life-estates or period of years, it shall and 
 may be lawful for the parties so liable for such tax to elect to wait 
 their coming into the actual possession of the estate or property 
 subject to the said tax and in such case shall give security to the 
 register of the proper county for the payment thereof on the per- 
 sonal estate at such period as they or their representatives may 
 come into possession, together with six per cent, per annum inter- 
 est on the amount of the tax from the time the same accrues until 
 paid, provided that such persons shall make a full return of such 
 property within one year from the date thereof or within one year 
 from the death of the decedent and within that period enter into 
 such security to the satisfaction of the register," etc. By Act 1855, 
 p. 425, § 1, it was provided that "the penalty of interest shall only 
 run from the time remainderman comes into possession * * * 
 and if such legatee or devisee shall elect to pay said tax in anticipa- 
 tion of the same coming into actual possession and enjoyment, the 
 same shall be received at the then valuation of the legacy or devise, 
 deducting the value of the life-estate or term of years." 
 i5o See In re Cooper's Estate, 127 Pa. St. 435, 17 Atl. 1094; In re 
 (234)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 54 
 
 The adjudications which, from time to time have been 
 made under these statutes, with reference to the appraise- 
 ment of estates in remainder, may be best stated in the fol- 
 lowing order. How far the authorities conflict, the writer 
 does not pretend to say: 
 
 (1) Under the early statutes in force prior to 1850, 151 es- 
 tates in remainder, contingent or otherwise, were apprais- 
 able immediately upon decedent's death, and, after deduct- 
 ing the value of the life estate, the tax was due and payable 
 to the register of wills. 152 
 
 The object of the act of 1849 was to give a mode of mak- 
 ing the appraisement. 153 
 
 But, in order to be appraisable at decedent's death, the 
 value of such estates, it seems, must then have been ascer- 
 tainable; otherwise the register could make no appraise- 
 ment of the estate in remainder. 154 
 
 The tax accrues at decedent's death, unless enjoyment is 
 postponed by a life estate in another; and, except in such 
 case, the value at the time of death is the basis for calculat- 
 ing the amount of the tax. 155 
 
 Where such estates were appraisable at decedent's death, 
 so that the tax could be imposed upon the ascertained value 
 of the estate, the statute of limitations then became opera- 
 
 Fagely's Estate, 128 Pa. St. 603, 18 Atl. 3S6; In re Del Busto's Es- 
 tate, 23 Wkly. Notes Cas. 111. 
 lsi 1 Purd. Dig. (10th Ed.) 215. 
 
 152 Com. v. Smith, 20 Pa. St. 100; Com. v. Eckert, 53 Pa. St. 102; 
 Mellon's Appeal, 114 Pa. St. 570, S Atl. 183; In re Cooper's Estate, 
 127 Pa. St. 435, 17 Atl. 1094; In re Fagely's Estate, 128 Pa. St. 
 603, 18 Atl. 386; In re Willing's Estate, 2 Wkly. Notes Cas. '307; 
 James' Appeal (1SS7) 2 Del. Co. Rep. 164. 
 
 153 James' Appeal and Com. v. Smith, supra. 
 
 154 See In re Nieman's Estate, 131 Pa. St. 346, 18 Atl. 900; Mel- 
 lon's Appeal, supra, 574; see In re Cager, 111 N. Y. 343, 18 N. E. 
 866. 
 
 155 In re Lines' Estate (1S93) 155 Pa. St. 378, 26 Atl. 728. 
 
 (235)
 
 § 54 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 tive against the commonwealth, 150 in favor of purchasers 
 of real estate upon which the tax was a lien. 157 
 
 Estates in remainder, or contingent estates, were like- 
 wise subject to appraisement and taxation at the decedent's 
 death, under the North Carolina statute. 158 
 
 In Pennsylvania, however, the taxation of such estates 
 before they vested in actual possession and enjoyment, and 
 by which accrued interest, and often heavy penalties, in the 
 nature of additional interest, was charged, became oppress- 
 ive, and was felt to be unjust, 159 and was so declared in the 
 preamble to one of the amendatory acts. 160 
 
 (2) As a result of this condition of the law, two remedial 
 statutes were passed, — one in 1850, 161 and the other in 
 1855. 102 
 
 By the former, tenant in remainder was given the election 
 to await his coming into the possession and enjoyment of 
 his estate before paying the tax, in which case he was to 
 give security for the payment of the tax to the register. It 
 would seem, however, that this statute simply delayed pay- 
 ment of the tax, and did not interfere with the appraisement 
 of such estate on decedent's death. 
 
 By the act of 1S55 it was provided that, if such remainder- 
 men elected to pay the tax in anticipation, "such tax was 
 to be received at the then valuation of the legacy or devise, 
 deducting the value of the life estate or term of years." 
 
 We have referred to these statutes, in this connection, 
 merely in so far as they relate to the question of appraise- 
 ment. Now, while it is evident that remainder-men were 
 
 156 Mellon's Appeal, supra. 
 
 157 James' Appeal, 2 Del. Co. Rep. 164; In re Cullen's Estate, 26 
 Wkly. Notes Cas. 216. 
 
 158 Attorney General v. Pierce, 6 Jones, Eq. 240. 
 i5» Mellon's Appeal, supra. 
 
 160 p. L. 1850, p. 170. 
 i6i Supra. 
 
 162 p. L. 1855, p. 425. 
 (236)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 54 
 
 relieved from the payment of the tax at the decedent's death, 
 and from onerous interest charges, it was nevertheless held 
 that the tax still accrued at decedent's death, so far as the 
 rights of purchasers were concerned, so as to bar the right 
 of the commonwealth to begin any proceeding, after the ex- 
 piration of 20 years from decedent's death, to enforce the 
 statutory lien. 163 
 
 It was suggested, however, before the decision in Mellon's 
 Appeal, that the object and intent of the statute of 1855 
 was not only to delay the payment until the tenant in re- 
 mainder came into possession, but also that the valuation 
 of his estate should be made at that time, thus giving him 
 the option of waiting until the value of his estate could be 
 accurately ascertained before it could be appraised. 164. 
 
 Again, where decedent died, and the tax was payable, 
 before the passage of the act of 1855, but none was imposed, 
 and the life tenant did not die until 1875, it was held that 
 under the act of 1855 the tax was not payable until the es- 
 tate vested in possession or enjoyment, but it continued a 
 lien, and should be appraised as of the date of decedent's 
 death. 165 
 
 In 1886 the question of appraisement of remainders came 
 before the supreme court for consideration. "As previously 
 provided for," said Sterrit, J., 166 "the tax accrues upon the 
 devolution of the estate that is subject thereto ; and the law 
 contemplates an appraisement as of that date, not only for 
 the purpose of ascertaining the tax on estates that vest in 
 possession and enjoyment, but also for the purpose of deter- 
 
 163 See Mellon's Appeal (1886) 114 Pa. St. 571, 572, 8 Atl. 183, and 
 cases cited supra. 
 
 164 McGeary's Estate (18S3) 14 Pa. Law J. (N. S.) 174. 
 
 las James' Appeal (1877) 2 Del. Co. Rep. 164; In re Cullen's Es- 
 tate, 26 Wkly. Notes Cas. 216. 
 166 Mellon's Appeal, 114 Pa. St. 572, 8 Atl. 183. 
 
 (237)
 
 § 54 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 mining the amount of the tax to be paid on those whose 
 actual possession and enjoyment are deferred until the ex- 
 piration of the intervening estate or term of years. * * * 
 There was nothing to have prevented him [the register] from 
 causing an appraisement of that interest and of the life es- 
 tate to be made; thereby ascertaining the value of the estate 
 in remainder, * * * and thus fixing the amount of the 
 collateral inheritance tax. In the meantime the remainder- 
 man would have had a right to anticipate payment, and thus 
 satisfy the lien by paying the tax and accrued interest there- 
 on." In Mellon's Appeal, 167 however, no administration of 
 the estate seems ever to have been had, and there was no 
 election upon the part of the remainder-men to pay the tax 
 when the estate vested in possession. The case would 
 seem, however, to conflict with the earlier cases cited, and 
 serves to show that the right to an immediate appraisement 
 on the part of the commonwealth was not taken away by 
 the act of 1855. 
 
 Whether the rule as thus announced with respect to the 
 appraisement of estates in remainder has been modified or 
 changed by the recent statute of 1887 remains to be deter- 
 mined. 
 
 After postponing the payment of the tax until the estate 
 vests in possession, the statute now provides that the tax 
 shall be assessed upon the value of the estate "at the time 
 the right of possession accrues to the owner as aforesaid." 
 This provision does not seem to be contained in the earlier 
 statutes, and is therefore new. If the right of possession 
 accrues "as aforesaid" (that is, at the time the estate ac- 
 tually vests in possession and enjoyment, and not upon de- 
 cedent's death), then the manifest intention of the legisla- 
 ture would appear to be to postpone both the appraisement 
 and the payment of the tax until the remainder -man comes 
 
 167 Supra. 
 (238)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 54 
 
 into possession. 168 If, therefore, the bond required by the 
 statute is filed within the year, the state would seem to lose 
 the right to an immediate appraisement of estates in re- 
 mainder, and to this extent the ruling in Mellon's Appeal 169 
 would appear to be modified. While the question was not 
 presented, this view seems to be confirmed by the recent case 
 of Commonwealth's Appeal, 170 where, in speaking of this 
 portion of the act, the court said: "Where, therefore, the act 
 declares that the tax shall be assessed upon the value of the 
 estate at the time the right of possession accrues to the own- 
 er, or that the tax shall be assessed on the value of the 
 estate at the time of the payment of the tax, it refers to the 
 then quantum of the estate, and not to the value of the land, 
 which may be a very different estate from that which passed 
 from the decedent." 
 
 But the act declares, 171 in case of failure to file the bond 
 within one year from decedent's death, the tax shall be im- 
 mediately payable and collectible. It would seem that 
 where such failure occurred it would afford strong evidence 
 that the remainder-man declined to elect to await the pos- 
 session, and the commonwealth would seem to have the 
 right to an appraisement, 172 although there does not appear 
 to be any provision of the statute providing for an appraise- 
 ment in such event. An appraiser, however, may be ap- 
 pointed as often as and whenever occasion may require, and 
 under this clause it would appear that an appraisement by 
 the register could be had in such a case 
 
 (3) But while the state does not now seem to be entitled 
 to a compulsory appraisement of estates in remainder, un- 
 
 168 in re McGeary's Estate, 14 Pa. Law J. (N. S.) 174; In re 
 Lines' Estate (1893) 155 Pa. St. 378, 26 Atl. 728. 
 
 169 Supra. 
 
 it o in re Cooper's Estate, 127 Pa. St. 435, 441, 17 Atl. 1094. 
 
 i7i Section 3. 
 
 it 2 see In re Willing's Estate, 2 Wkly. Notes Cas. 307. 
 
 (239)
 
 § 54 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 der the act of 1887, until the estate vests in possession or 
 enjoyment, the remainder-man is given the privilege or elec- 
 tion of anticipating payment of the tax, and thus has an 
 immediate right to an appraisement of his interest in re- 
 mainder : 
 
 (a) Under the act of 1855, where the legatee or devisee 
 elected to anticipate payment of the tax, the statute di- 
 rected that the same should be received at the then valua- 
 tion of the legacy or devise, deducting the value of the life 
 estate or term of years. 
 
 (b) Under the act of 18S7 the owner shall have the right 
 to pay the tax at any time prior to his coming into posses- 
 sion, and the tax shall be assessed on the value of the estate 
 at the time of payment of the tax, after deducting the value 
 of the life estate or estate for years. 
 
 These two enactments seem to be substantially of the 
 same purport, though couched in somewhat different lan- 
 guage. 
 
 What is meant by the "then valuation of the legacy or 
 devise," under the act of 1855, has been declared to be its 
 value as of the date it vested, — the death of the decedent; 
 and the valuation of the estate in remainder is to be ascer- 
 tained by deducting the value of the life estate or term of 
 years from the value of the entire estate. 173 
 
 Under this act, if tenant in remainder elected, in antici- 
 pation, to pay at the death of the decedent, the tax was ap- 
 praisable on the then valuation of the entire estate, less the 
 value of the estate for life or years; that is, when the ten- 
 ant of the intermediate estate was not liable, the tenant in 
 remainder had the election either to pay tax on the entire 
 estate, with interest, when he came into actual possession, 
 or to pay at the death of the decedent on the then net valu- 
 ation of the estate in remainder; and, in consideration of 
 
 173 Mellon's Appeal, 114 Pa. St. 572, 8 Atl. 1S3. 
 (240)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. §. 54 
 
 such .anticipated payment, her right to the tax on the inter- 
 mediate estate was held to be waived by the common- 
 wealth. 174 
 
 So, under the act of 1887, if tenant in remainder desires 
 to pay the tax at any time prior to his coming to the pos- 
 session, it is to be assessed on the value of the estate at the 
 time of the payment of the tax, after deducting the value of 
 the life estate or term of years. The value of the estate of 
 the remainder-man depends upon the clear value of the es- 
 tate passing from the person who died seised, and the prob- 
 able duration of the preceding life estate. 
 
 If the life tenant is old, or his estate has already been en- 
 joyed for a number of years, the tenant in remainder will 
 not be kept out of his interest so long as otherwise, and the 
 value of the estate will be greater. 175 
 
 And, as we have already seen, 176 in estimating the clear 
 value of the estate in remainder outstanding debts and ob- 
 ligations owing by decedent at the time of his death must 
 be taken into consideration, for they are a lien against his 
 real estate, to satisfy which the land may be sold; hence the 
 surplus or net value of the remainder only is liable to taxa- 
 tion. 177 
 
 The method of assessing the collateral inheritance tax is 
 to take the inventory and appraisement of the decedent's 
 estate as filed within 30 days after his death, or a new ap- 
 praisement is made by the state appraiser, and after deduct- 
 
 174 i u re Cooper's Estate, 127 Pa. St. 435, 17 Atl. 1094; In re 
 Willing's Estate (1876) 2 Wkly. Notes Cas. 307; In re McGeary's 
 Estate, 14 Pa. Law J. (N. S.) 174. 
 
 its in re Cooper's Estate, 127 Pa. St. 435, 17 Atl. 1094; Mellon's 
 Appeal, 114 Pa. St. 564, 8 Atl. 1S3. 
 
 176 Supra, § 52, c. 4, § 49. 
 
 177 in re Cooper's Estate, supra, 440; Com. v. Freedley, 21 Pa. 
 St. 33. 
 
 LAW INHER. — 16 (241)
 
 § 54 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 ing therefrom the debts and liabilities of the decedent, and 
 the expense of settling his estate, to impose the tax upon 
 the balance remaining. 178 
 
 Where payment of the tax is made after the possession 
 accrues, the remainder is to be valued as of the date of pos- 
 session. 179 And this is so whether the remainder arises by 
 formal bequest, or by operation of law. 180 
 
 (4) Under a recent ruling in Pennsylvania, it has been 
 held 181 that where the life tenant (a widow) has a power 
 of disposition of the corpus of the estate during life, and 
 there is a bequest to collaterals of the surplus that shall 
 remain after her death, no tax can be imposed upon the 
 residuum until her death, as it is impossible to ascertain its 
 
 17 8 Williamson's Estate, 49 Leg. Int. 106. 
 
 179 In re Cooper's Estate, 127 Pa. St. 435, 17 Atl. 1094. See Mel- 
 Ion's Appeal, 114 Pa. St. 572, 8 Atl. 1S3. 
 
 iso in re McGeary's Estate, 14 Pa. Law J. (N. S.) 174, citing Big 
 Black Creek Imp. Co. v. Com., 94 Pa. St. 453. It would appear to 
 be to the advantage of the remainder-man to anticipate payment of 
 the tax instead of paying it at the time the estate vests in posses- 
 sion. This appears from the method which I am informed is adopt- 
 ed by the registers in Pennsylvania in assessing and taxing estates 
 in remainder. For instance, if there is a devise of real estate worth 
 $5,000, subject to a life estate, and at the death of the testator the 
 life tenant was GO years old, reference to the Carlisle Table will 
 give figure 8,304, the product of which, multiplied by 5 per cent, 
 (the rate directed by the court to be used by the register for this 
 purpose) of $5,000 ($250), gives the value of the life estate, viz. 
 $2,070, the value of the remainder being the difference between that 
 amount and $5,000, viz. $2,924. The life tenant would therefore have 
 to pay the tax upon $2,076, and, if the remainder-man wished to pay 
 tax immediately, he would have to pay it upon $2,924 only, but, if 
 he did not pay the tax until the remainder vested,— and he cannot 
 be compelled to pay it before that time,— he would have to pay it 
 upon $5,000. The practice under the old acts was to pay the tax 
 annually upon the yearly value of the estate. 
 
 isi In re Nieman's Estate, 131 Pa. St. 346, 18 Atl. 900. See Mel- 
 Ion's Appeal, supra. 
 <242)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 54 
 
 amount or value, if any, until that time. The same result 
 has been reached in New York. 182 
 
 But where the widow has such power of disposition, and 
 a valid trust is created of the residue for charitable pur- 
 poses, it seems, the value of the life tenant's interest, and 
 of the amount necessary for her support, being ascertain- 
 able by evidence, a tax may be imposed upon such residue. 183 
 
 (d) New York.™ 
 
 (1) Provisions of Act of 1892. 
 
 In this state the method of appraisement and taxation of 
 remainder and future estates, contingent or otherwise, is 
 now regulated by the transfer tax act of lS92, 18r ' repealing 
 the former act of 1887. 
 
 The statute now provides 186 that if the property upon the 
 transfer of which a tax is imposed shall be an estate, income, 
 or interest for a term of years or for life, or determinable 
 upon any future or contingent estate, or shall be a remain- 
 der or reversion, or other expectancy, real or personal, the 
 entire property or fund by which such estate, income or in- 
 terest is supported, or of which it is a part, shall be ap- 
 praised immediately after such transfer, or as soon there- 
 after as may be practicable, at the fair and clear market 
 value thereof at that time; provided, however, that when 
 such estate, income, or interest shall be of such a nature 
 that its fair and clear market value cannot be ascertained 
 
 is2 in re Cager, 111 N. Y. 343, 18 N. E. 86G. See cases discussed, 
 subdivision a, post. 
 
 issin re Brewer's Estate, 15 Pa. Law. J. (N. S.) 433, 435; 1G Pa. 
 Law J. (N. S.) 114. 
 
 184 For the law of appraisements of remainders and future estates 
 under the statutes of other states, see statutes, Appendix. 
 
 185 Appendix, I. e, Laws 1S92, c. 399, §§ 11, 13. For act of 1SS7, 
 c. 713, §§ 2, 13, see Appendix, I. a. See, also, chapter G, § 3, subd. 3. 
 
 186 Laws 1892, c. 399, § 11. 
 
 (2i3)
 
 § 54 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 at such time, it shall be appraised in like manner at the time 
 when such value first became ascertainable. The value of 
 every future or contingent or limited estate, income, inter- 
 est, or annuity dependent upon any life or lives in being shall 
 be determined by the rule, 187 method, and standard of mor- 
 tality and value employed by the superintendent of insur- 
 ance in ascertaining the value of policies of life insurance 
 and annuities for the determination of liabilities of life in- 
 surance companies, except that the rate of interest for com- 
 puting the present value of all future and contingent inter- 
 ests or estates shall be 5 per centum per annum. The stat- 
 ute further provides 188 that the superintendent of insur- 
 ance shall, on the application of any surrogate, determine 
 the value of any such future or contingent estates, income, 
 or interest limited, contingent, dependent, or determinable 
 upon the life or lives of persons in being, upon the facts con- 
 tained in any such appraiser's report, and certify the same 
 to the surrogate, and his certificate shall be conclusive evi- 
 dence that the method of computation adopted therein is 
 correct. It also provides 189 that all taxes imposed shall 
 be due and payable at the time of the transfer: provided, 
 however, that taxes upon the transfer of any estate, prop- 
 erty, or interest therein, limited, conditioned, dependent, or 
 determinable upon the happening of any contingency or fu- 
 ture event, by reason of which the fair market value thereof 
 cannot be ascertained at the time of the transfer as herein 
 provided, shall accrue and become due and payable when 
 the persons or corporations beneficially entitled thereto shall 
 come into actual possession or enjoyment thereof. 190 
 
 187 Prior to 1887, the Northampton Tables were followed. In re 
 Robertson, 5 Dem. Sur. 92. 
 
 188 Laws 1S92, c. 399, § 13. 
 
 189 Laws 1892, e. 399, § 3. 
 
 ioo See, also, section 22, providing that the word "transfer." as 
 used in this act, shall be taken to include the passing of property or 
 (244)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 54 
 
 Section 11 of the statute of 1892, as originally enacted in 
 1885, and continued in 1887, was, it seems, taken from the 
 early statutes of Pennsylvania in existence prior to 1855. 191 
 Under the statutes of 1885 and 1887, although now repealed, 
 the decisions are of use, inasmuch as the same statutory pro- 
 visions are continued substantially in the act of 1892, with, 
 as we have seen, some important additions regulating the 
 assessment and taxation of contingent and future estates. 
 It was adjudged under the acts of 1885 and 1887 as follows: 
 
 (a) Vested Estates and Remainders. 
 
 (1) Vested remainders or estates, 192 limited upon life es- 
 tates or terms of years, are appraisable immediately upon 
 the death of the decedent. 193 
 
 (b) Contingent Estates — When not Appraisable at Death. 
 
 (2) But where, from the nature of the estate given to the 
 life tenant or first taker, it is impossible at decedent's death 
 to ascertain the fair market value of the estate in remainder 
 or future estate until the death of the life tenant, no ap- 
 praisement of such ultimate devise can be made at dece- 
 dent's death, nor until the estate vest in the actual posses- 
 sion or enjoyment of the beneficiary. 194 The statute of 
 
 any interest therein in possession or enjoyment, present or future, 
 by inheritance, descent, devise, etc. 
 »'Ji See supra, p. 237, note. 
 
 192 See a valuable note on "Vesting" in IS Abb. N. C. 300 (referred 
 to in Talmadge v. Seaman, 85 Hun, 242, 32 N. Y. Supp. 906), and 
 in chapter 6, § 5S, subds. c, 3a, "Vested Estates." See, also, on the 
 subject of vesting, In re Curtis' Estate, 73 Hun, 1S5, 25 N. Y. Supp. 
 909; Id., 142 N. Y. 219, 36 N. E. 8S7; In re Hoffman's Estate, 143 
 N. Y. 334, 38 N. E. 311; In re Stiles' Estate (Suit.) 3 N. Y. Supp. 137. 
 
 193 in re Vinot's Estate (Surr.) 7 N. Y. Supp. 517; In re Stanford, 
 9 N. Y. Law J. 327; In re Le Fever, 5Dem. Sur. 184; In re Cogswell. 
 4 Dem. Sur. 248; In re Higgins, 36 N. Y. Daily Reg. 906; In re 
 Hopkins, 6 Dem. Sur. 1; In re Van Rensselaer, N. Y. Law J. May 
 28, 1889; In re Ferrer, N. Y. Law J. Jan. 30, 1892, p. 1002. 
 
 is* In re Cager's Will, 111 X. Y. 342, 18 N. E. S0o. See In re
 
 § 54 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 1892 * now provides that where the estate, income, or inter- 
 est shall be of such a nature that its fair and clear market 
 value cannot be ascertained at the time of the transfer, it 
 shall be appraised at the time when such value first became 
 ascertainable; 195 that taxes upon any estate or interest 
 dependent or determinable upon any contingency or future 
 event, by reason of which the fair market value thereof can- 
 not be ascertained at the time of the transfer, shall accrue 
 and become due and payable when the persons or corpora- 
 tions beneficially entitled thereto shall come into the actual 
 possession or enjoyment thereof. 
 
 The leading case in New York on this subject under the 
 act of 1885 is that of Cager, 196 where the rule and method 
 of valuation of such estates was stated by Ruger, C. J., as 
 follows: "When the question as to whether any property at 
 all shall pass under the limitation over, and, if so, how 
 
 Curtis, 142 N. Y. 219, 36 N. E. 8S7, affirming 73 Hun, 185, 25 N. 
 Y. Supp. 909; In re Roosevelt's Estate, 143 N. Y. 120, 38 N. E. 281, 
 affirming 76 Hun, 257, 27 N. Y. Supp. 711; In re Hoffman's Estate. 
 143 N. Y. 330, 38 N. E. 311; Id., 76 Hun, 399, 27 N. Y. Supp. 1086; 
 In re Wheeler's Estate (Surr.) 22 N. Y. Supp. 1075; In re Wallace's 
 Estate (Surr.) 4 N. Y. Supp. 405, 466, citing In re Bruce; Talmadge 
 v. Seaman (Sup.) 32 N. Y. Supp. 900. Form of orders in such cases 
 given. In re Clark's Estate (Suit.) 5 N. Y. Supp. 199; In re Le 
 Fever, 5 Derm Sur. 1S4, distinguishing In re Cogswell, supra; In re 
 Beujamin, 30 N. Y. Daily Reg. 900; In re Hopkins, Dem. Sur. 1; 
 In re Higgins, supra; In re Fleming's Estate, N. Y. Law J. Oct. 15. 
 1S89; In re Matthews' Estate, N. Y. Law J. July 27, 1889; In re 
 Bennet's Estate, N. Y. Law J. March 4, 1889, p. 1814; In re Stewart, 
 131 N. Y. 274, 30 N. E. 184; Id. (Surr.) 10 N. Y. Supp. 15; In re Leavitf s 
 Estate (Surr.) 4 X. Y. Supp. 179. See Mellon's Appeal, 114 Pa. St. 
 573, 574, 8 Atl. 1S3; In re McGeary's Estate, 14 Pa. Law J. (N. S.) 
 174; In re Nieman's Estate, 131 Pa. St. 340, 18 Atl. 900; In re 
 Brewer's Estate, 15 Pa. Law J. (N. S.) 433, 10 Pa. Law J. (X. S.) 114. 
 
 * Laws 1892, c. 399, § 11. 
 
 las Laws 1892, c. 399, § 3. 
 
 196 111 N. Y. 343, 18 N. E. 866. 
 (21G)
 
 Ch. 5] APrKAISER AND APPRAISEMENT. § 54 
 
 much, depends upon the will of the first taker, we are unable 
 to see any rule by which such value can be determined. In 
 such a case there is no basis upon which the value of the 
 devise can be appraised, and no foundation for the imposi- 
 tion of any tax, and the provision for the giving of the con- 
 ditional bond therefor is wholly inapplicable." 
 
 In order that the tax may be imposed immediately upon 
 the death of the decedent, two things are necessary: First, 
 to determine definitely the fair market value of the property 
 subject to the tax; and, second, the person to whom such 
 property passes. 197 
 
 Where, therefore, there is a bequest to an exempt person 
 for life, with a limited power of disposition over the corpus 
 of the estate given to the life tenant, and with remainder 
 over after his death of what shall remain, such remainder is 
 not appraisable, as it is impossible to ascertain its value, if 
 any, until the death of the life tenant, as the latter may use 
 and dispose of the whole estate during his lifetime. 198 
 
 Under this rule, application for the appointment of an ap- 
 praiser will be denied where the persons among whom the 
 estate is to be divided on the death of the life tenant, or 
 the shares to which the legatees will be then entitled, can- 
 not be ascertained until such life tenant's death. 199 The 
 same doctrine, as we have seen, has been recently announced 
 in Pennsylvania. 200 But it seems when the amount neces- 
 sary for the life tenant — a widow — can be ascertained and 
 
 197 in re Clark (Suit.) 5 N. Y. Supp. 199. 
 
 las In re Cager, 111 N. Y. 343, 18 N. E. 800; In re Hopkins, Dem. 
 Sur. 1; In re Fleming, N. Y. Law J. Oct. 15, 1889, and cases cited supra; 
 In re Xieman's Estate, 131 Pa. St. 340, 18 Atl. 900. But see In re 
 Leavitt's Estate (Surr.) 4 N. Y. Supp. 179; In re Brewer's Estate, 15 
 Pa. Law J. (N. S.) 433, 10 Pa. Law J. (N. S.) 114. 
 
 199 In re Benjamin, 30 N. Y. Daily Reg. 900; In re Stewart (Surr.) 
 10 X. Y. Supp. 15; Id., 131 N. Y. 274, 30 N. E. 184; In re Millward's 
 Estate (1894) Misc. Rep. 425, 27 N. Y. Supp. 280. 
 
 200 in re Nieman's Estate, supra. 
 
 (247)
 
 § 54 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 fixed, and there is a valid trust in remainder to charitable 
 uses, although she may have a limited power of disposition, 
 a tax is assessable upon the remainder-men. 201 
 
 (c) May be Appraised on Vesting. 
 
 (3) But where no appraisement can be had at decedent's 
 death, and the contingent estate or remainder subsequently, 
 on the death of the life tenant, actually vests in possession 
 or enjoyment in a taxable heir or legatee, an appraisement 
 will then be allowed, and the tax imposed. Thus the act 
 of 1892 now provides. 202 
 
 In Re Cager 203 it was held that where the present value 
 of property which is devised to one with a limitation over 
 to others upon the happening of some event which may or 
 may not occur can be ascertained, then a ground upon which 
 an approximate estimate of the value of the ultimate devise 
 appears, and it may be made. In such a case the act en- 
 ables a tax to be imposed and collected upon the ulterior 
 devises through the medium of a bond to be given by the re- 
 spective legatees when they come into possession of the de- 
 vised property. 
 
 In cases of this character it was said in the Cager Case 
 that it was possible that no appraisement could be had after- 
 wards, if not allowed at the death of the decedent. This 
 view of the law would seem, however, to be obiter dicta, 204 
 
 201 in re Brewer's Estate, supra. 
 
 202 Laws 1892, c. 390, §§ 3. 11, 13; In re Wallace (Suit.) 4 N. Y. Supp. 
 465, 400, citing In re Bruce, supra; In re Clark (Suit.) 5 N. Y. Supp. 
 199; In re Leavitt's Estate (Suit.) 4 N. Y. Supp. 179; In re Nieman's 
 Estate, 131 Pa. St. 340, 18 Atl. 900; In re Stewart, supra, distinguishing 
 In re Cager, 111 N. Y. 350, IS N. E. 800. See In re Curtis, 142 N. 
 Y. 219, 30 N. E. 8S7; In re Roosevelt, 143 N. Y. 120, 3S N. E. 281; 
 In re Hoffman, 143 N. Y. 330, 38 N. E. 311; Talmadge v. Seaman 
 (Sup.) 32 N. Y. Supp. 900, 85 Hun, 242, reversed as In re Seaman 
 (Oct. 8, 1S95; Ct. App.) 41 N. E. 401. 
 
 203 Hi N. Y. 343, 18 N. E. 800. 
 
 204 see In re Stewart (Suit.) 10 N. Y. Supp. 15; Id., 131 N. Y. 274, 
 30 N. E. 184; In re Nieman's Estate and cases cited supra. 
 
 (248)
 
 Ch, 5] APPRAISER AND APPRAISEMENT. § 54 
 
 and the provision of the statute allowing an appraiser to be 
 appointed as often as and whenever occasion may require 
 was evidently overlooked. 205 As will be seen, this clause of 
 the act of 1892 is now much broader.* 
 
 The intention of this clause must be to meet such cases 
 in which no appraisement can be had upon decedent's 
 death; 206 otherwise many estates fully within the inten- 
 tion of the act would escape taxation. 
 
 In Re Vassar 207 the court said, in referring to life and 
 future estates under the act of 1887, that its provisions in- 
 dicated the legislative intent as requiring the appraisal to 
 be made immediately after the death of the decedent, and 
 that the property should be appraised as soon after death 
 as practicable. 
 
 In Re Stewart 208 a power of appointment was conferred 
 upon the trustee by will, authorizing him to convey the prop- 
 erty described in the power to certain persons, with a dis- 
 cretion as to the appointees. Four years afterwards he con- 
 veyed to certain of the legatees who were not exempt, and, 
 in holding the property passing to them liable to the tax, 
 Ransom, S., said: "It is true that at the date of the death 
 of Mrs. Stewart the appraiser could not determine either the 
 value of the estate which might eventually become taxable, 
 or the persons to whom it would pass; and he could not, 
 therefore, make any appraisal. It has been the practice of 
 this court to suspend all proceedings as to such contingent 
 estates until such contingencies happen, with a view to the 
 
 205 Appendix, I. e, Laws 1S92, c. 399, § 13. 
 * Chapter 399. § 11. 
 
 206 See Com. v. Freedley, 21 Pa. St. 33; section 54 d c. 
 
 207 127 N. Y. 1, 27 N. E. 394. 
 
 208 io N. Y. Supp. 15 (Surr.), and 131 N. Y. 274, 30 N. E. 1S4. See. 
 also, In re Purroy, 7 N. Y. Law J. May G, 1S92, 344; In re Cunning- 
 ham, 7 N. Y. Law J. July 21, 1892, 954, and In re Stanford, N. Y. 
 Law J. May 6, 1893. 
 
 (249)
 
 § 54 APPRAISER AND APPRAISEMENT. [Ch. 5- 
 
 appointment of an appraiser at that time to make the ap- 
 praisement. 209 * * * The claim that at the death of this 
 decedent there was no estate that could be held subject to 
 the tax, and that, therefore, there could be no tax assessed 
 now, cannot be sustained. It is a well-settled principle of 
 the law that where parties take under a power of appoint- 
 ment they take under the instrument creating the power, so 
 that the parties named by H. under the power given him 
 must be regarded as the persons selected by Mrs. Stewart." 
 These views were sustained by the court of appeals, 210 hold- 
 ing that although the property was not appraisable at de- 
 cedent's death, under the act of 1885, it became both ap- 
 praisable and taxable when the power of appointment was 
 exercised by the trustee. 
 
 In Re Curtis 211 the question of the appraisement or valu- 
 ation of contingent interests at death of the testator was 
 discussed, but not decided. The will of decedent created 
 trusts for life for the benefit of two daughters and two 
 grandchildren, with remainders to such of her nephews and 
 nieces named, living at the time of the successive termina- 
 tion of each trust, and if any of them should then be dead r 
 leaving issue, to such issue. The surrogate, basing his opin- 
 ion upon In re Stewart, 212 held that the remainders were 
 both immediately assessable and taxable. In holding, under 
 the act of 18S5, that the remainders were not taxable until 
 the successive termination of each trust, for the reason it 
 could not then be determined whether the property would 
 
 209 Citing In re Wallace and In re Clark, supra, note 202. See In 
 re Stanford, N. Y. Law J. May 0, 1893. 
 
 210 in re Stewart (1S92) 131 N. Y. 274, 30 N. E. 1S4. See the sub- 
 ject of powers discussed in this case and in Re Johnson, N. Y. Law 
 J. June 17, 1892. 
 
 2ii (1894) 142 N. Y. 219, 38 N. B. SS7, affirming 73 Hun, 185, 25 
 N. Y. Supp. 909. 
 212 In re Stewart, 131 N. Y. 277, 30 N. E. 1S4. 
 (250)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 54 
 
 pass to taxable persons, or to exempt persons, Finch, J., 
 said: 
 
 "The surrogate seems to have rested his conclusion upon 
 our recent decision in Re Stewart. The opinion in that case 
 cannot be held, in any respect, to justify such a construc- 
 tion. It does decide that contingent interests, although 
 vesting in possession at a future day, may be at once valued 
 and assessed, and that such interests, vesting in no specific 
 beneficiary when the will takes effect, cannot be taxed, but 
 come under the operation of the law when the event which 
 locates and fixes them occurs. It may be that where the 
 only contingency of the future is upon which of several 
 named persons or classes of persons, all of wmoni are liable 
 to suffer the taxation, the beneficial interests will ultimately 
 devolve, the appraisal and assessment need not be post- 
 poned, 213 though even that is hardly a prudent construction, 
 but need not now be discussed; yet where the contingency 
 touches the taxable character of the succession, where it is 
 only in the chance of uncertain events that the beneficial 
 interests will finally alight where they will be taxable at all, 
 a delay until the contingency is solved is both just and nec- 
 essary. * * * 
 
 "A time will come, at the close of the trusts, when the 
 question can be settled; and then, if the property passes to 
 nephews and nieces, the proper assessment can be made and 
 collected." 
 
 In Re Roosevelt 214 the question of the assessment of con- 
 tingent estates arose under the act of 1887; and, in follow- 
 ing the views expressed in the Curtis Case, 215 it w r as held 
 that, as to the remainders, there was a contingency affect- 
 
 213 See Laws 1892, c. 399, § 11. 
 
 21*143 N. Y. 120, 3S N. E. 2S1 (1S94), affirming 76 Hun, 257, 27 
 N. Y. Supp. 741. 
 215 73 Hun, 1S5, 25 N. Y. Supp. 909. 
 
 (251)
 
 § 54 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 ing them which rendered it impossible to ascertain their 
 present fair and clear market value. 
 
 Bartlett, J., said : 
 
 "In the case at bar there is a contingency affecting the 
 value of the estate * * * which brings it strictly with- 
 in the principle of the Curtis Case. * * * 
 
 "The legislature, in the act of 1892, has given a practical 
 construction to its previous legislation on this subject when 
 it provides that, where the fair market value of the property 
 or interest cannot be ascertained at the fime of the transfer, 
 the tax shall become due and payable when the beneficiary 
 shall come into actual possession or enjoyment." 216 
 
 The provisions of the act of 1892 217 have already been re- 
 ferred to at length; 218 and their effect would seem to be to 
 postpone both the appraisement and taxation of contingent 
 or future estates, where their value cannot be ascertained 
 at the time of death, to the time when they vest in actual 
 possession or enjoyment. This, as we have seen, is the con- 
 struction now placed upon these provisions by the court of 
 appeals. 219 
 
 In Re Hoffman, 220 where the question was considered un- 
 der the act of 1892, the will created a life estate upon which 
 another life estate was contingent in the event that the 
 second life tenant survived the first, and, in case she did 
 not so survive, with remainder over to nephews and nieces. 
 Under the act of 1892, there being a tax of 5 per cent, if the 
 
 216 Laws 1S92, c. 399, § 3. 
 
 217 Appendix, I. e, c. 399, §§ 3, 11, 22. 
 
 218 Page 245, supra, 
 
 2i9 in re Roosevelt (1894) 143 N. Y. 120, 38 N. E. 2S1, affirming 70 
 Hun, 257, 27 N. Y. Supp. 741; In re Hoffman's Estate, 143 N. Y. 330, 
 3S N. E. 311, modifying 70 Hun, 399-403, 27 N. Y. Supp. 1080, and dis- 
 tinguishing In re Curtis, 142 N. Y. 219, 30 N. E. 8S7; In re Wheeler's 
 Estate (Surr.) 22 N. Y. Supp. 1075. 
 
 220 1-13 n. Y. 330, 38 N. E. 311. 
 (252)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 54 
 
 property passed to nephews and nieces, and a tax of 1 per 
 cent, if it passed to lineal heirs, a fact was presented which 
 could not be determined until the remainders vested in pos- 
 session or enjoyment* 
 
 Finch, J., in referring to this difficulty, said: 
 'Tor taxation is a hard fact, and should attach only to 
 such ownership, and may properly be compelled to wait un- 
 til chances and possibilities develop into the truth of an ac- 
 tual estate possessed, or to which there exists an absolute 
 right of future possession. I am not shutting my eyes to 
 the statutory language, which is quite broad. 
 
 "The property taxed may be an estate 'for a term of years 
 or for life or determinable upon any future or contingent 
 estate' or 'a remainder, reversion or other expectancy,' and 
 the tables of mortality may be resorted to for the ascertain- 
 ment of values. And yet it is the 'fair market value,' the 
 'fair and clear market value,' which is to be assessed, and 
 with the proviso that if that value cannot be at once as- 
 certained the appraisal is to be adjourned. 221 I can scarcely 
 imagine a contingency, depending upon lives, which mathe- 
 matics could not solve by the doctrine of chances and the 
 averages of mortality, and there could hardly be an adjourn- 
 ment, unless upon some rare contingency, having no aver- 
 ages; and the results in cases dependent upon lives might 
 still leave the 'fair and clear market value' in doubt, and 
 yield sums which no sale in the market would produce. My 
 judgment is further guided by the very significant definition 
 of the word 'transfer.' 222 It 'shall be taken to include the 
 passing of property or any interest therein in possession or 
 enjoyment present or future.' It thus contemplates a pres- 
 ent enjoyment, or a fixed and absolute right of future enjoy- 
 ment, and adjourns the appraisal until the fulfillment of 
 contingencies leaves those results attained. Here there must 
 
 221 Laws 1892, c. 399, § 11. 222 Laws 1892, c. 399, § 22. 
 
 (253)
 
 § 54 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 be that adjournment until the rights of Ella [contingent life 
 tenant] and Olga [contingent remainder-man] become fixed 
 and actual. The result does no injustice to the state. The 
 trust fund must remain in the hands of the executors to feed 
 the life estates, and for payment over of the remainder. The 
 executors must pay the tax when they know against whom 
 it is chargeable, and the rate to be assessed. The state will 
 get its tax when the legatees get their property." 223 
 
 So, under the act of 1S92, the value of a bequest for life 
 to testator's widow, or until she marries again, cannot be 
 determined, for the purpose of taxation, until the termina- 
 tion of the widow's estate, either by death or marriage. 224 
 
 Where real estate converted by the will of testator into 
 personalty was largely owned by him and others as partners, 
 and used in the prosecution of business, the actual value of 
 which, or testator's interest therein, was dependent on the 
 manner in which it was controlled by the executors, the as- 
 sessment and collection of the tax to which the same is sub- 
 ject should be postponed until the persons entitled thereto 
 come into the actual possession or enjoyment thereof. 225 
 
 (d) When Appraisahle at Death. 
 
 (4) It was held, under the acts in force prior to 1892, that 
 where the fund or legacy constituting such contingent es- 
 tate or remainder was certain and fixed in amount, but the 
 person in whom it might eventually vest might never take 
 the estate or remainder, or it could not be determined at de- 
 cedent's death, whether the estate would vest in a taxable 
 heir or legatee, an appraisement might nevertheless be made 
 at decedent's death, but the payment of the tax was to be 
 
 223 See, also, Talmadge v. Seaman. So Hun, 2 '2. 32 X. Y. Snpp. 
 906; reversed as In re Seaman (Oct 8, 1895; Ct App.) 41 N. E. 401. 
 
 224 in re Millward's Estate (Suit.) 27 N. Y. Supp. 285. 
 
 225 Laws 1892, e. 399, § 3; In re Wheeler's Estate (1892) 1 Misc. Rep. 
 450, 22 N. Y. Supp. 1075. 
 
 (254)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 54 
 
 postponed until the estate actually vested in possession or 
 enjoyment. In such case the tax could not be imposed up- 
 on the principal fund in the possession of the exempt life 
 tenant, as he has a right to use such fund intact and unim- 
 paired. 220 This rule would seem to be sanctioned under the 
 act of 1892, 22T providing that if the property upon the trans- 
 fer of which a tax is imposed shall be an estate, income, or 
 interest for a term of years, or for life, or determinable upon 
 any. future or contingent estate, or shall be a remainder or 
 reversion, or other expectancy, real or personal, the entire 
 property or fund by which such estate, income, or interest 
 is supported, or of which it is a part, shall be appraised im- 
 mediately after such transfer, or as soon thereafter as may 
 be practicable, at the fair and clear market value thereof at 
 that time: provided, however, that when such estate, in- 
 come, or interest shall be of such a nature that its fair and 
 clear market value cannot be ascertained at such time, it 
 shall be appraised in like manner at the time when such 
 value first became ascertainable. 228 
 
 Where, therefore, an annuity or legacy be contingent upon 
 the annuitant surviving the life tenant, or of the legatee 
 reaching a certain age, they are appraisable upon decedent's 
 death ; but, it being then impossible to determine to whom 
 the property will go, the question as to whether the annuity 
 or legacy is subject to taxation cannot be determined, and 
 should be suspended until the contingency does or does not 
 happen. Upon the death of the tenant it can be deter 
 
 22c Cases cited supra; In re Clark (Surr.) 5 N. Y. Supp. 199; In re 
 Cager's Will, 111 N. Y. 343, 18 N. B. 866; In re Stewart, 131 N. Y. 
 274, 30 N. E. 1S4. See In re Feck (Surr.) 9 N. Y. Supp. 465. But see 
 In re Johnson, 6 Dem. Sur. 146; In re Leavitt (Surr.) 4 N. Y. Supp. 
 179; In re Benjamin, N. Y. Daily Reg. Dec. 7, 18S9. 
 
 227 Laws 1892, c. 399, § 11. 
 
 228 in re Hoffman's Estate, 143 N. Y. 330, 3S N. E. 311; In re 
 Roosevelt's Estate, 143 N Y. 120, 38 N. E. 2S1. See, also, the re- 
 marks of the court in Re Curtis, 142 N. Y. 223, 36 N. E. 887. 
 
 (255)
 
 §55 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 mined to whom the property will pass, and whether or not 
 it will be subject to the tax. 229 
 
 § 55. Effect of Appraisement and Appeals 
 Therefrom. 230 
 
 Under the New York statute 231 every appraiser must give 
 notice by mail to all persons known to have a claim or in- 
 terest in the property to be appraised, including the county 
 treasurer and comptroller, 232 and to such persons as the sur- 
 rogate may direct. In proceedings for assessment under 
 these statutes, infant legatees or beneficiaries, being entitled 
 to notice, should be represented by special guardian. Where 
 it is sought to dispense with such guardian, proof should be 
 introduced, in the petition for an appraiser, showing facts 
 taking the case outside the general rule. 233 Where infants 
 were not mentioned in the petition for an appraisement, 
 were served with no notice to attend, and were unrepresent- 
 ed by guardian or otherwise in the proceeding, these are ju- 
 risdictional defects which must be remedied before any tax 
 can be assessed or fixed. 234 Any person dissatisfied with 
 
 220 i n re Clark (Surr.) 5 N. Y. Snpp. 199; In re Wallace (Sum) ^ 
 N. Y. Supp. 465; In re Matthews' Estate, N. Y. Law J. July 27, 1889; 
 In re Stewart, supra; In re Curtis, 142 N. Y. 219, 36 N. E. 887, affirm- 
 ing 73 Hun, 185, 25 N. Y. Supp. 909. 
 
 230 See, also, section 51, supra, and chapter 8, as to "remedy and 
 practice" under these acts. 
 
 231 Laws 1892, c. 399, § 12. 
 
 232 a decree exempting certain corporations made under the act 
 of 1887 was held binding upon the state in another proceeding, and 
 a bar thereto; the court holding that state officials and the county 
 treasurer, comptroller, or district attorney were not required to be 
 notified. In re Wolfe, 137 N. Y. 205, 33 N. E. 156, distinguished in 
 Re Smith (Surr.) 23 N. Y. Supp. 762. 
 
 233 in re Lewis, N. Y. Law J. July 21, 1892, citing In re McPher- 
 son, 104 N. Y. 306, 10 N. E. 6S5. 
 
 234 in re Hamilton, 13 N. Y. Law J. 606. 
 (25G)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 55 
 
 the appraisement or assessment and determination of tax 238 
 may appeal therefrom to the surrogate, within GO days from 
 the fixing, assessing, and determination of the tax by the 
 surrogate, upon filing in the office of the surrogate a writ- 
 ten notice of appeal which shall state the grounds upon 
 which the appeal is taken. The same provisions regarding 
 appeals are also contained in the Illinois statute. 236 The 
 hearing before the surrogate must be limited to the errors 
 alleged in the notice of appeal; otherwise the requirement 
 of the statute would be without significance. Where there 
 is manifestly no error alleged, the order will be affirmed. 237 
 On an appeal from an order confirming an appraiser's re- 
 port the appraiser allowed certain sums for burial plot, fu- 
 neral expenses, and attorney's services. The executrix was 
 sole devisee, and asked to be allowed in addition f 1,917 for 
 erecting a monument over testator's grave, which was dis- 
 allowed by the appraiser, and this constituted the ground of 
 appeal. The testator left a large amount of unincumbered 
 realty, which was free of tax, and by the allowance of the 
 sum for the monument the personalty of the deceased would 
 be reduced to a valuation of less than $10,000, and become 
 not taxable. As against creditors, the court held that the 
 allowance of this sum would be excessive, and that, where 
 the contest, as here, was between the sole legatee and the 
 state, the latter should be treated in the same light as a 
 creditor. The appeal was only allowed to the extent of 
 $1,000. 238 
 
 235 Laws 1S92, c. 399, § 13. 
 
 236 Appendix, X., St. 111. 1S95, (Bradwell's Ed.) p. 215, § 11. 
 
 237 i n re Skidmore, 13 N. Y. Law J. 704. 
 23 8 in re Sauter, 13 N. Y. Law J. 1000. 
 
 On this question, rule 26 of the surrogate's court of New York 
 county is as follows: "(1) Upon the filing of the appraiser's report 
 the surrogate will immediately enter the order determining the value 
 of the property and the amount of the tax. The matter will not 
 appear on the calendar at this stage, nor will the court then con- 
 LAW INHER. 17 (257)
 
 § 55 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 An order confirming the report of the appraiser and de- 
 termining the amount of the tax, 239 or an appraisement of 
 property, not appealed from in the manner prescribed by 
 law, becomes final and conclusive as well against the state 
 as against the persons interested, 240 who had due and prop- 
 er notice of the proceeding resulting in such appraise- 
 ment, 241 where such appraisement has been made in good 
 faith, and without any mistake, fraud, or concealment on the 
 part of the appraiser, or of the persons interested in the 
 property. 242 
 
 Where property has been withheld from the consideration 
 of the appraiser, whether intentionally or otherwise, and as 
 
 sider objections to the report. (2) A party having objections to the 
 report or the order entered thereupon may within 60 days file a no- 
 tice of appeal. This notice to be served upon all parties appearing 
 before the appraiser, and proof of such service to be filed with the 
 clerk, with the notice of appeal. Thereupon the proceeding will be 
 placed upon the calendar for the next regular motion day. This no- 
 tice must specify the grounds of objection. (3) A special guardian 
 will be appointed to protect the interest of infants upon the return of 
 the appraiser's notice, if it appears that their rights are involved, and 
 they are not otherwise adequately represented." See In re Lewis 
 and cases supra. 
 
 239 in re Miller, 110 N. Y. 216, 18 N. E. 139; Id., 5 Dem. Sur. 119. 
 
 240 Com. v. Freedley, 21 Pa. St. 33; Stinger v. Com., 26 Pa. St. 
 422; Strode v. Com., 52 Pa. St. 186; In re Astor, 6 Dem. Sur. 416; 
 In re Miller, supra; In re Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 
 239; In re Keenan's Estate (Suit.) 5 N. Y. Supp. 200; In re Ferrer, 
 N. Y. Law J. Jan. 30, 1892, p. 1062; In re Wolfe, 137 N. Y. 205, 33 
 N. E. 156. In Pennsylvania, it seems, no appeal can be sustained 
 from the appraiser's assessment unless the record before him shows 
 prima facie error. In re Goldstein's Estate, 16 Phila. 319. 
 
 24i See, also, In re Vanderbilt's Estate, supra; In re McPherson, 
 104 N. Y. 306, 10 N. E. 685. As to persons not notified the proceed- 
 ings are void. In re Cockey, 8 N. Y. Law J. 1507. 
 
 242 in re Astor, 6 Dem. Sur. 416; In re Keenan's Estate (Surr.) 5 
 N. Y. Supp. 200; Com. v. Freedley, 21 Pa, St. 33. And see Attorney 
 General v. Dardier, 11 Q. B. Div. 20. 
 (258)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 55 
 
 to which the appraiser had no knowledge, and the same was 
 not appraised, the state has the legal right to institute pro- 
 ceedings for the recovery of the tax thereon. 243 And in 
 New York, by recent statute, 244 in certain cases where there 
 has been an appraisement before the surrogate, a further 
 appraisement may be had within two years after entry of 
 the surrogate's decree, before a justice of the supreme court, 
 where the state comptroller shows that the prior decree was 
 the result of fraud, collusion, or is erroneous. 
 
 Any personal estate not included in the inventory upon 
 which the tax was assessed is liable to the tax. 245 
 
 But where, pending an appeal from the appraiser's report, 
 the parties liable to the tax, under the decree of the lower 
 court, make payment of it, this does not estop the state from 
 prosecuting the appeal, and recovering interest upon the tax 
 from the date of payment. 246 
 
 And where the liability of an alleged gift to be taxed was 
 in dispute, on which account the decision of the appraiser 
 was suspended, and he subsequently decided that it was lia- 
 ble, the right of appeal only runs from the latter date. 247 
 
 The appraisement, it seems, is conclusive as to the value 
 of the estate, but not as to its liability to taxation. 248 
 
 It seems, the value of policies of insurance at the time of 
 death of testator, where such value has been found by the 
 
 243 in re Smith (Surr.; 1893) 23 N. Y. Supp. 762. 
 2*4 Laws 1895, c. 556, amending Laws 1892, c. 399, § 13. See Ap- 
 dix, I. 
 
 245 in re Russell's Estate (18S6) 19 Wkly. Notes Cas. 256. 
 
 246 in re Fagely's Estate, 128 Pa. St. 603, 18 Atl. 3S6; Common- 
 wealth's Appeal, 47 Leg. Int. 16. 
 
 247 Fosselman's Appeal, 2 Penny. 240. See In re McGeary's Es- 
 tate, 14 Pa. Law J. (N. S.) 174. 
 
 248 Stinger v. Com., 26 Pa. St. 424; Strode v. Com., 52 Pa, St. 
 186; Tyson v. State, 28 Md. 577. 
 
 (259)
 
 § 55 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 appraiser from competent evidence, is not the subject of 
 review in the court of appeals. 249 
 
 The failure of the state to commence proceedings for the 
 ascertainment and ultimate collection of the tax due to the 
 fact that there was no administration of decedent's estate, 
 and thus the matter was not brought to the attention of the 
 register, creates no exception to the law, so far as bona fide 
 purchasers are concerned, limiting the right to commence 
 such proceedings to a certain period of time. 250 
 
 In Maryland, where the court is authorized to determine,, 
 in its discretion, the amount of the tax against life tenant, 
 annuitant, and remainder-man, its judgment is, by statute, 251 
 made final and conclusive; but this would seem to refer 
 only to the amount of the tax or the value of the estate, and 
 not to the question of liability. 252 
 
 How often can an appraisement be made, and what is the 
 effect of a subsequent increase in the value of the property 
 appraised, and, incidentally, of fraud, mistake, concealment, 
 or omission? 253 Both the Pennsylvania and the New York 
 statutes allow, under such circumstances, the appointment 
 of an appraiser as often as and whenever occasion may re- 
 quire. 254 In Com. v. Freedley, 255 an appraisal had been 
 
 249 in re Knoedler's Estate (1893) 140 N. Y. 379, 35 N. E. 601, 
 affirming 68 Hun, 150, 22 N. Y. Supp. 608. 
 
 250 Appeal of Mellon, 114 Pa. St. 564, 8 Atl. 183. And see James' 
 Appeal, 2 Del. Co. Rep. 164; In re Cullen's Estate, 26 Wkly. Notes- 
 Cas. 216; Id., 142 Pa. St. 18, 21 Atl. 781. 
 
 251 Appendix, VIII., § 115. 
 
 252 Tyson v. State, supra. 
 
 253 See proceedings authorized by the state comptroller in New 
 York. Laws 1895, Appendix I. e, § 13. 
 
 254 in re Smith's Estate (Suit.; 1893) 23 N. Y. Supp. 762, distin- 
 guishing In re Wolfe, 137 N. Y. 205, 33 N. E. 156. See, also, In re 
 Stewart, 131 N. Y. 274, 30 N. E. 184. 
 
 25521 Pa. St. 33. 
 (2G0)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 55 
 
 made on behalf of the state, and the tax assessed thereon. 
 Subsequently the appraised property increased greatly in 
 value, and the state sought to tax this increase. The opin- 
 ion of Woodward, C. J. 5 in deciding against the claim, would 
 seem to be of general application. He said: 256 "That the 
 assessment of the appraiser is to be final, if not appealed 
 from, is shown by the act declaring that it is made to fix the 
 valuation of the real estate, that the appraisement of a per- 
 sonal estate is to be fair and conscionable, and that the tax 
 on annuities and life estates is to be immediately payable 
 out of the estate at the rate of such valuation. But prop- 
 erty subject to the tax may be fraudulently concealed, inci- 
 dentally overlooked, or it may not be known to the represent- 
 atives of the decedent at the time of the appraisement, and 
 therefore the register is to appoint an appraiser 'as often as 
 and whenever occasion may require.' 257 Whenever por- 
 tions of the estate come to light after the first appraise- 
 ment, they are to be appraised in the same manner, but as 
 to such portions as were the subject of the appraisement the 
 'clear value' is fixed, and the law assesses the tax. * * * 
 Such is the system provided for collateral inheritance taxa- 
 tion, and it does not admit of opening to take in additions 
 to the clear value of property once assessed. That property 
 is vested in the heir or devisee. If it appreciates after it 
 comes to him, it is his good luck; if it depreciates, it is his 
 misfortune. But as the state would not submit to a read- 
 justment for the purpose of diminishing her taxes, in the 
 event of subsequent depreciation, she is not entitled to a 
 readjustment for the purpose of increasing it, by reason of 
 an advance in the market value of the estate after an assess- 
 ment by officers of her own appointment, with the right of 
 appeal. 258 The commonwealth is as much subject to the 
 
 256 21 Pa. St. 36. 
 
 257 gee In re Smith, supra. 
 
 25 s see In re Bird's Estate, N. Y. Law J. July 28, 1S90. 
 
 (2G1)
 
 § 55 APPRAISER AND APPRAISEMENT. [Ch. 5 
 
 rules of equity and justice as her citizens. She possesses 
 the taxing power, but, when it has been fairly employed ac- 
 cording to her own dictation, it is spent and gone." 259 
 
 Seemingly in direct antagonism to Com. v. Freedley is a 
 case under the English legacy act, but it turned, in reality, 
 upon the construction of language not contained in the 
 American statute. 260 
 
 In Attorney General v. Dardier, to which we refer, 281 cer- 
 tain valuable pictures were devised as a specific legacy. A 
 duty had been accepted by the crown upon a low valuation, 
 apparently made in good faith, between the taxing commis- 
 sioners and the executors. Subsequently the executors sold 
 the pictures at a large advance, and it was held 262 that not- 
 withstanding these facts the crown was entitled to further 
 duty upon the increase, although there was no fraud upon 
 the part of the executors. Pollock, B., treated the first ap- 
 praisement as having been made under a common mistake 
 upon the part of both parties, — that the pictures were not 
 to be sold, — which, being discovered, entitled the crown to 
 duty upon the actual value of the proceeds of the property, 
 when sold. 
 
 So, where property was omitted by mutual mistake from 
 the appraisement, a further appraisement was allowed 13 
 years afterwards, but the executors were relieved from pen- 
 alty. 263 
 
 259 See, also, Coleman v. Com., 52 Pa. St. 468; Stinger v. Com., 26 
 Pa. St. 425; In re Cooper's Estate (Appeal of Commonwealth) 127 
 Pa. St. 435, 17 AtL 1096. See In re Vanderbilt's Estate (Surr.) 10 
 N. Y. Supp. 239; In re Bird's Estate, supra. 
 
 260 Attorney General v. Dardier, 11 Q. B. Div. 16. But see Attorney 
 General v. Sefton, 11 H. L. Cas. 257. 
 
 28i 11 Q. B. Div. 16. 
 
 262 Under 53 Geo. III. c. 52, § 22. 
 
 263 in re Brewer's Estate, 16 Pa. Law. J. (N. S.) 114, 15 Pa. Law 
 J. (N. S.) 435; In re Fagely's Estate (Appeal of Commonwealth) 128 
 Pa. St. 613, 18 Atl. 3S6. See In re Keenan's Estate (Suit.) 5 N. Y. 
 
 (262)
 
 Ch. 5] APPRAISER AND APPRAISEMENT. § 55 
 
 It seems, a certified receipt of the county treasurer or 
 comptroller of the county where jurisdiction was first ac- 
 quired will be full protection to any subsequent purchaser 
 of such land, as against any claim for the tax. 2 * 54 
 
 The great age of a life tenant whose share is subject to 
 taxation affords no reason for postponing the confirmation 
 of the appraiser's report. 265 
 
 In New York the surrogate is not bound by the appraiser's 
 report, but may take such further evidence as he deems 
 proper, and base his decision thereon. 266 
 
 Such report is not final. It is to aid the surrogate to 
 decide what property is liable to the tax, and it is subject 
 to confirmation, revision, or rejection by the surrogate. 267 
 And, where all papers are not submitted to the appraiser 
 before he makes his report, the proceeding will be remitted 
 to him to proceed de novo. 268 
 
 Supp. 200; In re Astor, 6 Dem. Sur. 416; Fosselman's Appeal, 2 
 Penny. 240. 
 
 264 in re Keenan's Estate, supra. 
 
 265 in re Wilkes' Estate, N. Y. Law J. Oct. 31, 18S9. 
 
 2 66 in re McPberson, 104 N. Y. 323, 10 N. E. 685; In re McGow- 
 an's Estate, N. Y. Law J. July 30, 1890. But see In re Vanderbilt's 
 Estate (Surr.) 10 N. Y. Supp. 239. 
 
 267 in re McGowan's Estate, supra. 
 
 26 8 in re Jones' Estate, N. Y. Law J. July 31, 1S90; In re Knoed- 
 ler, N. Y. Law J. June 3, 1892; In re Dreyer, N. Y. Law J. Feb. 
 17, 1892. 
 
 (263)
 
 56 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 CHAPTER VI. 
 
 iVESTED AND CONTINGENT ESTATES— TRANSFERS INTER 
 VIVOS AND CAUSA MORTIS— POWERS AND LEGACIES. 
 
 § 56. Life Estates, Annuities, Legacies, and Joint Tenancies. 
 
 57. Relative Rights of Life Tenant and Remainder-Man. 
 
 58. Remainders, Contingent and Future Estates. 
 
 (a) Under the English Statutes. 
 
 (b) Under the Acts of Congress. 
 
 (c) Under New York Statutes of 1885, 1887, 1892. 
 
 (1) Preliminary Review of Early Statutes. 
 
 (2) Provisions of Transfer Tax of 1S92. 
 
 (3) Decisions under These Acts. 
 
 (a) Vested Estates. 
 
 (b) Contingent or Future Estates. 
 
 (c) When not Taxable nor Appraisable at Death. 
 
 (d) When Appraisable at Death. 
 
 (e) Appraisable and Taxable when Vesting in 
 
 Possession or Enjoyment. 
 
 (f) Estates Taxable under Retroactive Clause, 
 
 New York Act of 1892. 
 
 (d) Under Pennsylvania Statutes. 
 
 (e) Massachusetts Statutes. 
 
 59 Fraudulent Transfers. Trusts, and Gifts Inter Vivos and 
 Causa Mortis. 
 
 60. Powers of Appointment. 
 
 61. Legacies for Debts and Other Obligations. 
 
 § 56. Life Estates, Annuities, Legacies, and Joint 
 
 Tenancies. 
 
 We have already considered the general nature and con- 
 stitutionality of collateral inheritance, legacy, and succes- 
 sion tax laws, 1 and of the exemptions from taxation under 
 such laws, 2 including questions relating to the domiciliary 
 
 i Chapters 1, 2. 2 Chapter 3. 
 
 (204)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 56 
 
 condition either of person or property with respect to this 
 tax. 3 So the various provisions of law relating to the ap- 
 praisement or valuation of property under these statutes 
 have been considered in the preceding chapter. 
 
 In the present chapter, in addition to the consideration 
 of the liability of both vested and contingent estates or re- 
 mainders, it has also been deemed proper to include several 
 other important topics, such as fraudulent or intentional 
 transfers, trusts and gifts inter vivos to evade the tax, 4 
 powers of appointment, 5 and legacies in payment of debts 
 and other obligations. 6 
 
 Cases embracing a right or power of disposition in the 
 life tenant, where the remainder-man is not exempt, and in- 
 volving relative rights of life tenant and remainder-man, 
 have likewise been considered in the present chapter. 7 
 
 The general rule is that the tax due by tenant for life is 
 payable immediately when distribution is or should be made, 
 and, if payment is delayed, the consequence must fall on 
 him, and not upon the remainder-man. 8 
 
 So where there is a bequest of a fund in trust for one dur- 
 ing life, with remainder to others, the tax is payable forth- 
 with on the life estate out of accruing income, and on the 
 principle when the life estate has fallen. 9 This is so both 
 with annuities and life estates. 10 The tax should be upon 
 the clear value of the life estate at the testator's death, and 
 
 e Chapter 4. * p st, § 59. b id. § 60. 6 id. § 61. 
 
 t See section 57, post; In re Cager, 111 N. Y. 343, 18 N. E. 866; 
 In re Nieman's Estate, 131 Pa. St. 346, 18 Atl. 900. 
 
 8 In re Wharton's Estate, 10 Wkly. Notes Cas. 106. 
 
 9 In re Christian's Estate, 2 Parker, Cr. R. 91; In re Johnson, 6 
 Dem. Snr. 146; In re Willing's Estate, 2 Wkly. Notes Cas. 307, 308; 
 In re Wharton's Estate, supra; In re Thomson's Estate, 12 Phila. 
 131; In re Forbes' Estate, 16 Phila. 356; Commonwealth's Appeal, 
 127 Pa. St. 438, 17 Atl. 1094. 
 
 io In re Budd's Estate (1892) 49 Leg. Int. 502, 12 Pa. Co. Ct. R 
 470, and 2 Pa. Dist. R. 148. 
 
 (2G5)
 
 § 5Q VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 not upon the value of the property when it is assessed. 11 
 An annuity is an estate within the meaning of these stat- 
 utes. 12 And legacies payable out of income are annuities. 13 
 Annuities granted to trustees to be employed by them while 
 carrying on testator's business are taxable as legacies under 
 the English legacy act. 14 The word "legacy" will sometimes 
 be held to include real estate. 15 The liability of such annu- 
 ities to the tax is not affected by the fact that the income 
 applied to their payment must be paid out of and is likely 
 to diminish the principal fund. 16 
 
 On the other hand, it has been held that, where the life 
 tenant is an exempt person, there is no principle upon which 
 the fund in his hands — and which he has the right to enjoy 
 intact — can be appropriated for the purpose of paying a tax 
 upon contingent annuities before the death of the life ten- 
 ant, 17 unless expressly directed by will; 18 as where the gift 
 was of a net annual sum of $1,200, and its payment was di- 
 rected to be made quarterly in sums of $300, with reserva- 
 tion of a principal sum out of the investments of the dece- 
 
 11 U. S. v. New York Life Ins. & Trust Co., 9 Ben. 413, Fed. Cas. 
 No. 15,873; In re Leavitt's Estate (Surr.) 4 N. Y. Supp. 179; In re 
 Vassar, 127 N. Y. 8, 27 N. E. 394. Supra, c. 4, § 49. 
 
 12 In re Bispham's Estate, 46 Leg. Int. 98; In re Thomson's Es- 
 tate, 5 Wkly. Notes Cas. 19. 
 
 is In re Williamson's Estate, 143 Pa. St. 150, 22 Atl. 836. 
 
 14 Thorley v. Massam [1891] 2 Ch. Div. 613. 
 
 is In re Miller, 7 N. Y. Law J. 308. 
 
 is In re Leavitt's Estate, supra; In re Johnson, 6 Dem. Sur. 146; 
 In re Van Beuren, N. Y. Law J. March 26, 1891, p. 1600. 
 
 it In re Clark (Surr.) 5 N. Y. Supp. 199; In re Hopkins, 6 Dem. 
 Sur. 1. See In re Peck (Surr.) 9 N. Y. Supp. 465, 24 Abb. N. C. 365. 
 note. See, also, In re Christian's Estate, 2 Pa. Co. Ct. R. 91, and 
 cases cited supra. 
 
 is See cases post, § 61. But see In re Spies, N. Y. Law J. July 
 21, 1892, citing In re Swift's Estate (Suit.) 16 N. Y. Supp. 193; Id. 
 (Sup.) 19 N. Y. Supp. 292; Id., reversed on another point, 137 N. Y. 
 77, 32 N. E. 1010. 
 (266)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 56 
 
 dent's estate ample to yield a net income of $1,200 per an- 
 num, the tax falls upon the residue and not upon the annu- 
 itant. 19 In Massachusetts the tax on annuities is to be 
 paid out of the annuity as soon as the annuity becomes pay- 
 able, and at the time when payments on account of the an- 
 nuity are made, though the effect may be that the first pay- 
 ments will be exhausted by the tax. 20 So where decedent 
 bequeathed one-fourth of his estate, to invest the same and 
 to pay to M. the sum of $300 per annum till the fund be ex- 
 hausted, if she so long live, this was held not to be an an- 
 nuity, but a legacy payable in annual installments, and, the 
 remainder being to lineal heirs, the tax was only due on 
 each payment as made, and not upon the entire fund. 21 In 
 one case it was held that the decree should provide for the 
 retention of a sum the income of which at the rate of 4 per 
 cent, per annum would be sufficient to defray the amount of 
 the tax. 22 Again it has been held 23 that after the property 
 has been assessed, and the tax fixed, it is no concern of the 
 court as to whether, under the will, the tax shall be paid 
 by the annuitants or shall fall upon the residuary estate. It 
 is no concern of the state that the testator may have direct- 
 ed a particular fund out of which the tax shall be paid. 
 The testator cannot compel the state to look for the tax to 
 others than the legatee or fund taxable under the act. 24 
 
 In England, where the duty is chargeable by will upon the 
 residuary estate, and the legacies are relieved therefrom, 
 and the residuary estate proves insufficient to pay the same, 
 
 is Bispham's Estate, 46 Leg. Int. 98; In re Van Beuren, 4 N. Y. 
 Law J. (March 26, 1891) p. 1600. 
 
 20 Minot v. Winthrop (1894) 162 Mass. 116, 3S N. E. 512. 
 
 si In re Crompton's Estate (1891) 48 Leg. Int. 452, 10 Pa. Co. Ct. 
 R. 443, and 29 Wkly. Notes Cas. 36. 
 
 22 In re Van Benren, supra. 
 
 23 in re Spies and cases cited, supra. 
 
 24 in re Swift, 137 N. Y. 77, 32 N. E. 1096. 
 
 (267)
 
 § 56 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 the legatees must pay duty to the extent to which the gen- 
 eral estate is insufficient to pay the same. 25 
 
 Under the New York statute it has been held that, where 
 it is impossible to ascertain the person to whom such annu- 
 ities will be payable until the death of the life tenant, they 
 are not taxable until such death. 26 
 
 In Re Roosevelt's Estate, 27 decedent, who died in 1887, gave 
 his residuary estate to his executors, in trust to pay the in- 
 come thereof to his wife during her life. Upon her death said 
 estate was given to beneficiaries named, subject to the pay- 
 ment of certain annuities specified, each given for the life 
 of the annuitant; and it was held that neither the annuities 
 nor the remainders were presently taxable under the act of 
 1887; that as to the annuitants they had no vested interest, 
 and could take none until the death of the wife, and as to 
 the remainders there was a contingency affecting them 
 which rendered it impossible to ascertain their present fair 
 and clear market value. Bartlett, J., said: "It does not 
 follow because the legislature taxes persons beneficially en- 
 titled to property or income, in possession or expectancy, 
 that a tax was thereby imposed upon an interest that may 
 never vest. Until that time the power to tax does not ex- 
 ist. The testator has created seven life annuities if the an- 
 nuitants survive his wife, and there can be no vested inter- 
 est in any of them until the happening of that event. All 
 may survive, a portion may be living, every one may be dead. 
 To hold such a possibility presently taxable, and its value 
 capable of immediate computation, shocks the sense of jus- 
 tice." The value of a bequest to testator's widow for life, 
 
 2 5 Wilson v. O'Leary, L. R. 17 Eq. 419. 
 
 26 in re Clark's Estate (Surr.) 5 N. Y. Supp. 199. See In re Curtis, 
 142 N. Y. 219, 36 N. E. 887, affirming 73 Hun, 185, 25 N. Y. Supp. 909; 
 In re Roosevelt's Estate, 143 N. Y. 120, 38 N. E. 281; In re Hoffman's 
 Estate, 143 N. Y. 327, 38 N. E. 311; and cases post, § 58, subds. c, 3c. 
 
 27 Supra. 
 (268)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 56 
 
 or until she marries again, cannot be determined, for the pur- 
 pose of taxation, until the termination of the widow's estate, 
 either by death or marriage. 28 
 
 So it has been held that the interest of a wife in real es- 
 tate devised to herself and husband as tenants by the en- 
 tirety is taxable during the husband's lifetime, as her inter- 
 est is vested and certain, and she may, by statute, 29 compel 
 partition of the property. 30 The statute has been construed 
 at law, however, as only allowing the wife to claim partition 
 where the husband agrees thereto. 31 But the estate of the 
 wife, as tenant by the entirety, being in the nature of a 
 vested remainder, which she could not be deprived of by any 
 act of her husband, would seem to be a taxable interest un- 
 der the statute, notwithstanding her husband should refuse 
 to join in partition proceedings. 
 
 In England the liability of joint tenants for this tax is 
 specially regulated by statute. 32 Where an annuity is given 
 by a testator's will to a daughter for life, with a provision 
 that if the daughter die before her youngest child shall have 
 arrived at legal age said annuity is to be paid to the daugh- 
 ter's husband, "or the guardian that may be of said chil- 
 dren," said legacy, being evidently given to the husband for 
 the use of his children, is not liable to collateral tax. 33 
 
 zs in re Mill ward's Estate (Surr.) 27 N. Y. Supp. 2S6. 
 
 2 9 Laws N. Y. 1SS0, c. 472. 
 
 so in re Higgins' Estate, 36 N. Y. Daily Reg. 906; distinguishing 
 In re Le Fever, 6 Dem. Sur. 154, and In re Hopkins, 6 Dem. Sur. 1. 
 and citing In re Willing's Estate, supra. 
 
 si O'Connor v. McMahon, 54 Hun, 66, 7 N. Y. Supp. 225. See, also, 
 Stelz v. Scbreck (Sup.) 10 N. Y. Supp. 790; Beach v. Hollister, 3 
 Hun, 519; Newell v. Newell, 7 Ch. App. 253. 
 
 32 36 Geo. III. c. 52, § 15; 16 & 17 Vict. c. 51, § 3. See chapter I, 
 § 4, note 42. 
 
 ■33 in re Morris' Estate (1892) 49 Leg. Int. 424, 1 Pa, Dist. Rep. 
 818. 
 
 (269)
 
 § 57 VESTED AND CONTINGENT ESTATES. ["Ch. 6 
 
 § 57. Relative Rights of Life Tenant and 
 Remainder-Man. 
 
 The estate of tenant for life and that of remainder-man 
 are to be considered distinct and separate, and neither is 
 to be affected by the tax, interest, or penalty to be paid by 
 the other. 34 Hence tenant for life is entitled to the enjoy- 
 ment of the entire estate while he lives, he paying only the 
 tax assessed upon the value of such estate; while tenant in 
 remainder, when he shall come into the possession and en- 
 joyment, is entitled to it without other deduction than the 
 tax paid by himself, and such interest as may have accrued 
 thereon. The tax upon the tenant for life being chargeable, 
 as we have seen, out of the income belonging to him, and 
 that of the remainder-man out of the valuation of his re- 
 mainder. 35 Hence, on a bequest of a fund in trust for one 
 during life, with remainder to others, the tax is payable on 
 the life estate forthwith out of accruing income, and on the 
 principal when the life estate has fallen. 36 Where legacies 
 are made a charge upon realty which is devised in trust for 
 life to another, the tax upon the legacies is not postponed 
 to the termination of the trust estate, but they are payable 
 at decedent's death. 37 
 
 Where the interest of the life beneficiary is not taxable, 
 
 s* Commonwealth's Appeal (Cooper's Estate) 127 Pa. St. 438, 17 
 Atl. 1095. 
 
 35 in re Wharton's Estate, 10 Wkly. Notes Cas. 105, 14 Phila. 279; 
 In re Forbes' Estate, 16 Phila. 356; Commonwealth's Appeal (Coop- 
 er's Estate), supra; In re Thomson's Estate, 12 Phila. 131; In re 
 Christian's Estate, 2 Pa. Co. Ct. R. 91; In re Johnson, 6 Dem. Sur. 
 146; In re Leavitt's Estate (Surr.) 4 N. Y. Supp. 179; In re Clark 
 (Surr.) 5 N. Y. Supp. 199. 
 
 se in re Christian's Estate, supra; In re Johnson, supra. 
 
 «7 in re Wright, 6 N. Y. Law J. p. 317. 
 (270)
 
 •Ch. 6] VESTED AND CONTINGENT ESTATES. § 57 
 
 and that of the remainder-man is, it has been held in New 
 York that the amount of the remainder-man's tax is lawfully 
 payable out of the principal notwithstanding the tax on the 
 remainder will reduce the capital, and so affect the income 
 of the life tenant. 38 But the authorities upon this point in 
 that state are not harmonious. 39 And, in view of the ad- 
 judications in Pennsylvania, the rule by which the exempt 
 life tenant's interest is impaired for the purpose of impos- 
 ing a tax upon the remainder-man would seem to be of 
 doubtful propriety. It has been questioned and dissented 
 from. 40 Under the Pennsylvania statute it is held that even 
 where both tenant for life and the remainder-man are tax- 
 able, the only tax demandable upon decedent's death is that 
 upon the outstanding life estate, to be paid by the life ten- 
 ant alone or charged against her income; and it is optional 
 whether tenant in remainder pays the tax in anticipation 
 of his estate accruing or at the time it actually comes into 
 possession. 41 Whether tenant in remainder will avail him- 
 self of the privilege of anticipating payment is a matter 
 which he alone, or his trustees for him, should determine. 42 
 Where the life estate is not ended, the tax on remainder is 
 not demandable, and no assessment should be made. 43 Where 
 tenant for life is exempt, the whole tax is payable by tenant 
 
 3 8 In re Johnson, supra; In re Leavitt's Estate, supra. See In re 
 Peck (Surr.) 9 N. Y. Supp. 4G5, and note to 24 Abb. N. C. 365. 
 
 39 See contra, In re Hopkins, 6 Dem. Sur. 1; In re Clark, supra; 
 In re Peck's Estate, supra. 
 
 40 in re Cockey, 8 N. Y. Law J. 1507. 
 
 4i In re Wharton's Estate, supra; In re Willing's Estate, 2 Wkly. 
 Notes Cas. 307, 308. 
 
 42 id. 
 
 43 in re Butler's Estate (1894) 14 Pa. Co. Ct. R. 667. But by act 
 of 1887 (Appendix, III. § 2) the appraisement seems also to be now 
 postponed. See chapter 5, § 54, subd. c. See In re Budd's Estate 
 (1892) 49 Leg. Int. 502, where it is held that life estates and annuities 
 subject to the tax are to be appraised and the tax paid at once. 
 
 (271)
 
 § 57 VESTED AND CONTINGENT ESTATES. [Ch. & 
 
 in remainder, and in such case the time of payment merely 
 is postponed until the estate comes into actual possession. 44 
 If he elect to pay at the death of the decedent, the tax is as- 
 sessable at the time of payment on the then valuation of the 
 entire estate, less the value of the life estate or term of 
 years; 45 the cases in connection with which subject have 
 been considered in the chapter on "Appraisement." 48 Tax 
 upon a legacy subject to a life estate is not payable until 
 the termination of the life estate, provided that security for 
 its payment at that time be duly entered; the right to pay 
 the tax by way of anticipation at a valuation then to be made 
 being also given. 47 Where the will vests in the devisee an 
 estate in fee, it cannot be taken away by a subsequent clause 
 limiting the estate to a life estate, under the rule that the 
 lesser estate must give way to the general intent giving a 
 greater estate in clear terms; hence the devisee is liable to 
 pay a tax upon an estate in fee. 48 
 
 The statute of Massachusetts 49 provides that the present 
 worth of a remainder must be ascertained by deducting the 
 value of the life estate from the appraised value of the prop- 
 erty, and that the value of the life estate is to be determined 
 by actuaries' tables. Under these provisions, where a wife 
 left to her husband a life estate in $10,000, not taxable, at 
 his decease to go to E., the tax upon the remainder must be 
 computed and deducted from the principal sum; and, al- 
 thought the tenant for life will have lost the income on the 
 
 44 in re Wharton's Estate, 10 Wkly. Notes Gas. 105; In re Willing's 
 Estate, 2 Wkly. Notes Cas. 307, 308. 
 
 45 Cooper's Estate (Appeal of Commonwealth) 127 Pa. St. 435, 17 
 Atl. 1005; affirming Cooper v. Com., 5 Pa. Co. Ct. R. 275; Appeal of 
 Mellon, 114 Pa. St. 572, 8 Atl. 183. 
 
 4 6 Chapter 5, § 54, subd. c. 
 
 4T in re Budd's Estate (1892) 49 Leg. Int. 502, 12 Pa. Co. Ct. R. 
 47G, and 2 Pa. Dist. Rep. 148. 
 4 8 Sprankle v. Com., 2 Walk. (Pa.) 420. 
 49 See Appendix, IV., Laws 1891, c. 425, §§ 2, 13. 
 (272)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 amount so deducted, such a loss must be borne by legatee 
 in remainder. 50 
 
 § 58. Remainders, Contingent and Future Estates. 
 
 (a) Under the English Statutes. 
 
 Under the perfect system of the English law, all inter- 
 ests, vested and contingent, and whether passing by will, 
 intestate law, or by deed inter vivos, gift causa mortis, or 
 otherwise, are at some time made subject to taxation under 
 these statutes. Layton says: 51 "To whatever medium a 
 person may resort — will, deed, bond, etc. — for the disposi- 
 tion of his real and personal estate on his death, such prop- 
 erty is now chargeable with duty; nor does the nature of 
 the instrument in the least affect the payment of the tax. 
 The provisions are of a most comprehensive and searching 
 character, so much so that it is difficult to imagine a trans- 
 action or dealing with property to take effect upon a death 
 after the 19th of May, 1853, that will elude its operation, 
 general or special. 52 
 
 The duties are to be paid on the successor, or any person 
 in his right or on his behalf, becoming entitled in posses- 
 sion, 53 unless the title to the succession is accelerated by 
 the extinction or surrender of any prior interest, in which 
 case the duty is to be paid at the same time and in the 
 same manner as if no acceleration had taken place. 54 
 
 so Minot v. Winthrop (1S94) 162 Mass. 113, 38 N. E. 512. Contra, 
 In re Wharton's Estate, 10 Wkly. Notes Cas. 106. 
 
 si Legacy and Succession Taxes (9th Ed.), London, 1892, 110, 111, 
 122, et seq. 
 
 52 See, as to contingent interests, 36 Geo. III. c. 52, § 17; 16 & 
 17 Vict. c. 51, §§ 2, 20, 35. See, also, cases cited post, § 58, subd. 3f. 
 as to retroactive statutes. 
 
 53 16 & 17 Vict. § 20. 
 
 54 16 & 17 Vict. § 15; Trev. Tax. Sue. (4th Ed.) 189. See Lord 
 Adv. v. McDonald, 24 Sc. Sess. Cas. (2d Ser.) § 1175; Attoruey 
 
 LAW INHEK. — 18 (273)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 So, in estimating the value of a succession, no allowance 
 shall be made in respect of any contingency upon the hap- 
 pening of which the property may pass to some other per- 
 son; but, in the event of the same so passing, the successor 
 shall be entitled to a return of so much of the duty paid 
 by him as will reduce the sum to the amount which would 
 have been payable by him if such duty had been assessed 
 in respect of the actual duration or extent of his interests. 55 
 
 (b) Under Acts of Congress. 
 
 Under the acts of congress 56 in force until the year 
 1870, the tax was only due and payable upon such interests 
 in remainder when the beneficiary became entitled to the 
 possession and enjoyment of the estate, or to the benefi- 
 cial interest in the profits arising therefrom; hence it was 
 held that estates in remainder were not taxable until the 
 successor became entitled to the possession or enjoyment 
 or the expectancy terminated, and legacies which did not 
 vest in possession or enjoyment until after the act was re- 
 pealed were not liable. 57 
 
 Under these acts 58 a succession was defined to denote the 
 devolution of the title of any real estate, hence it was con- 
 ferred where the following conditions occurred: A past 
 disposition of real estate by will, deed, or the laws of de- 
 scent, by reason of which the person taxed became benefi- 
 
 General v. Middleton, 3 Hurl. & N. 125; Wilcox v. Smith, 4 Drew. 
 40; 26 LfAv .T. Ch. 596. The executor is allowed to commute duties 
 upon contingent interests under 43 Vict. c. 14, §§ 10. 11. 
 
 ss 16 & 17 Vict. c. 51, § 36; 36 Geo. III. c. 52, § 17. 
 
 5 6 13 Stat. 287, §§ 125, 126; 16 Stat. 256, § 127. See Rev. St. U. 
 8. (2d Ed.; 1878) §§ 3438, 3439; chapter 1, § 5, notes 44, 45. 
 
 5 7 Wright v. Blakeslee, 101 U. S. 174; Clapp v. Mason, 94 U. S. 
 589; Mason v. Sargent, 104 U. S. 689; U. S. v. Hazard, 8 Fed. 380; 
 U. S. v. Bruce, Id. 381. And see chapter 5, § 54, subd. a. 
 
 5 8 Act June 30, 1864, c. 126; 13 Stat. 287, §§ 125, 126; 16 Stat. 
 256, § 127. 
 (274)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 dally entitled, in possession or expectancy, to the real 
 estate or income thereof, and by which the person so tak- 
 ing became so entitled upon the death of the person mak- 
 ing such disposition, and that the grantor died after the 
 passage of the imposing act. 59 
 
 Hence, where an estate for the life of another was given 
 to trustees with a remainder in fee to the children of such 
 life tenant surviving her, a succession was created under 
 these acts, and the tax was due and payable at her death. 60 
 
 A succession tax was, however, imposed where the life 
 tenant accelerated the succession by an amicable agree- 
 ment dividing the estate between herself and the remaiuder- 
 man. 61 
 
 (c) Under New York Statutes of 1885, 1887, 1892. 
 
 (1) Preliminary Review of Early Statutes. 
 
 The original New York statute, passed in 1885, e * as 
 amended in 1887, subjected to the tax all property, in trust 
 or otherwise, by the devolution of which any person or 
 body politic should become beneficially entitled, in posses- 
 sion or expectancy, upon the testator's or grantor's death, 
 and where any devolution 63 should be an estate, income, 
 or interest, for a term of years or for life, or determinable 
 
 69 Blake v. McCartney, 4 Cliff. 101, Fed. Cas. No. 1,498; Wright 
 v. Blakeslee, supra. 
 
 eo Wright v. Blakeslee, supra. 
 
 siBrune v. Smith, 13 Int. Rev. Rec. 54. Fed. Cas. No. 2,053; Ex 
 parte Stitwell, 59 Law T. R. 539. But see Page v. Rives, 1 Hughes, 
 297, Fed. Cas. No. 10,660. 
 
 6 2 Laws 1885, c. 483. See Appendix. I., Laws 1S87. c. 713: Laws 
 1892, e. 399. See note on "Contingent Remainders," by Austin Ab- 
 bott, Esq., 19 Abb. N. C. 234; 24 Abb. N. C. 365; note on "Vested 
 Estates," 18 Abb. N. C. 300; Talmadge v. Seaman, 85 Hun, 242, 32 N. 
 Y. Supp. 906, reversed as In re Seaman (Oct. 8, 1895; Ct. App.) 
 41 N. E. 401; In re Curtis, 142 N. Y. 219, 36 N. E. 887. 
 
 63 Laws 1887, § 2. 
 
 (275)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 upon any future or contingent event, or should be a re- 
 mainder, reversion, or other expectancy, real or personal, 
 it was to be appraised immediately after the decedent's 
 death, at its fair and clear market value at the time of 
 death, and its value determined by the surrogate, 64 and 
 the tax thereon was immediately due and payable. It 
 was also provided that the persons beneficially interested 
 in the property chargeable with said tax might elect not 
 to pay the same until they should come into the actual 
 possession or enjoyment of such property, in which case 
 they were to file a bond, to be given to the people of the 
 state, in a penalty of three times the amount of the tax, 
 arising upon personal estate, conditioned for the payment 
 of the tax and interest at such time or period as they or 
 their representatives should come into the actual posses- 
 sion and enjoyment of such property. 
 
 These acts, and especially that of 1885, were early criti- 
 cised as being imperfect and impracticable of enforcement 
 in many instances, and especially with respect to the tax- 
 ation of contingent remainders or future estates, 65 while 
 its provisions, as borrowed from the early statutes of Penn- 
 sylvania, have been characterized as harsh and oppress- 
 ive. These strictures have, to a limited extent, proved 
 to be just, but the practical workings of the statutes, gen- 
 erally, have shown better results in the state of New York 
 for this system of taxation than were at first anticipated 
 or hoped for; and, as the court of appeals said, its provi- 
 sions have been found comprehensive enough to embrace 
 all estates in possession or expectancy, gifts of the corpus 
 or of the income, and estates in trust; and the obvious 
 intent of the legislature, it is said, was to impose a tax 
 
 e* Prior to 1887 the Northampton Tables were followed. See In 
 re Robertson, 5 Dem. Sur. 92. 
 
 es See In re MePherson, 164 N. Y. 324, 10 N. E. GS5; In re Cager. 
 Ill N. Y. 350. 18 N. E. 86G. 
 (27G)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 on every interest, immediate or future, derived under a 
 testator or intestate. 66 
 
 This was true, but by this language the court did not 
 mean that all future or contingent estates or interests 
 whatever, where the vesting or taxability was uncertain, 
 were to be taxed at decedent's death, but such seems to 
 have been the impression. 67 
 
 And, in pursuance of this declaration, attempts were 
 made under these early acts to assess and tax, as of the 
 time of death, not only vested estates, interests, or re- 
 mainders, but also to assess and tax, as of the same time, 
 contingent or future interests devised to collateral heirs, 
 in which there was only the barest possible chance or op- 
 portunity of the estate ever vesting in the beneficiaries, 
 
 ee in re Stewart (1892) 131 N. Y. 281. 30 N. E. 184. See, also, In 
 re Hoffman's Estate, 143 N. Y. 334, 38 N. E. 311. The language of 
 the act of 1892 (chapter 399) is also very broad. See section 22, Ap- 
 pendix; In re Cunningham, 7 N. Y Law J. 9o4. 
 
 6 7 See In re Curtis, 142 N. Y. 223, 36 N. E. 887, where the court, 
 In distinguishing the Stewart Case, said: "The opinion in that [Stew- 
 art] case cannot be held in any respect to justify such a construc- 
 tion. It does decide that contingent interests, although vesting in 
 possession at a future day, may be at once valued and assessed, 
 and that such interests vesting in no specific beneficiary when the 
 will takes effect cannot then be taxed, but come under the opera- 
 tion of the law, when the event which locates and fixes them occurs. 
 It may possibly be that, where the only contingency of the future is 
 upon which of several named persons or classes of persons, all of 
 whom are liable to suffer the taxation, the beneficial interests will 
 ultimately devolve, the appraisement and assessment need not be 
 postponed, though even that is hardly a prudent construction, but 
 need not now be discussed; yet when the contingency touches the 
 taxable character of the succession, where it is only in the chance 
 of uncertain events that the beneficial interests will finally alight 
 where they will be taxable at all, a delay until the contingency is 
 solved is both just and necessary." See, also, Talmadge v. Seaman, 
 85 Hun, 242, 32 N. Y. Supp. 906, reversed as In re Seaman (Oct. 8, 
 TS95; Ct. App.) 41 N. E. 401. 
 
 (277)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 and where it was impossible to determine, at decedent's 
 death, in whom such estates would vest, whether in taxa- 
 ble or nontaxable persons, heirs or legatees. 68 Speak- 
 ing particularly of estates of this nature, before these acts 
 with reference to this question were very well understood 
 in New York, we said, in our first edition, 09 that it would 
 seem to be just that both the assessment and payment of 
 the tax upon such estate should only take place when 
 such estates vested in possession, giving the remainder- 
 man the right, however, if he so elected, of anticipating 
 payment. This practice of attempting to tax such estates, 
 as of the time of death, under the early acts, was finally 
 promptly condemned in most positive language by the 
 judges, when the question was definitely presented to the 
 court of appeals, in Be Curtis, 70 and a delay until the con- 
 tingency was solved was said to be both just and neces- 
 sary, when the proper assessment could be made and col- 
 lected. Finch, J., said, substantially, that the attempt to 
 tax such estates was "too unjust to be borne." This rul- 
 ing was followed in later cases by the same court 71 in con- 
 struing these acts; and also under the act of 1892, 72 Bart- 
 lett, J., declaring 73 that it "shocks the sense of justice." 
 
 6s See the following eases of this character in the lower courts: 
 In re Cunningham, supra; In re Curtis, G N. Y. Law J. 1514, citing 
 In re Stewart, supra; In re Ferrer, 6 N. Y. Law J. 1062; In re Stan- 
 ford, 9 N. Y. Law J. 327; In re Hoffman's Estate, 5 Misc. Rep. 439, 
 26 N. Y. Supp. S88, reversed in 76 Hun, 399, 27 N. Y. Supp. 1086, 
 and 143 N. Y. 333, 38 N. E. 311. 
 
 6 9 September, 1890, p. 160. 
 
 to 142 N. Y. 223, 36 N. E. 887; affirming 73 Hun, 1S5, 2o N. Y. 
 Supp. 909. 
 
 7i In re Roosevelt's Estate, 143 N. Y. 120, 38 N. E. 2S1; In re 
 Hoffman's Estate, 143 N. Y. 334, 38 N. E. 311. 
 
 72 Laws 1892, c. 399. 
 
 73 in re Roosevelt's Estate, supra. 
 (278)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 (2) Provisions of Transfer Tax of 1892. 
 
 Under this statute, entitled "An act in relation to taxa- 
 ble transfers of property," as construed by the court of 
 appeals, 74 it would now seem that both the assessment 
 and taxation of contingent or future estates and interests 
 cannot be made at decedent's death, but is now adjourned 
 until such estates or interests vest in the actual posses- 
 sion or enjoyment of the beneficiary. 
 
 This is substantially the effect of the provisions of the 
 act of 1892. 75 
 
 That statute provides that "if the property upon the 
 transfer of which a tax is imposed shall be an estate, in- 
 come or interest for a term of years, or for life, or deter- 
 minable upon any future or contingent estate, or shall be 
 a remainder or reversion, or other expectancy, real or per- 
 sonal, 76 the entire property or fund by which such estate, 
 
 74 In re Roosevelt's Estate, supra; In re Hoffman's Estate, supra; 
 Talmadge v. Seaman, supra. 
 
 75 See Appendix, I. e, for this statute, with amendments to 1895. 
 
 7 6 The following are some of the provisions of the New York Re- 
 vised Statutes (.Banks' 8th Ed., vol. 4, § 2431), defining vested and 
 contingent estates: 
 
 "Sec. 7. Estates as respects the time of their enjoyment are di- 
 vided into estates in possession and estates in expectancy. 
 
 "Sec. 8. An estate in possession is where the owner has an im- 
 mediate right to the possession of the land; an estate in expectancy 
 is where the right to possession is postponed to a future period. 
 
 "Sec. 9. Estates of expectancy are divided into (1) estates com- 
 mencing at a future day denominated future estates, and {2) re- 
 versions. 
 
 "Sec. 10. A future estate is an estate limited to commence in pos- 
 session on a future day either without the intervention of a pre- 
 cedent estate or on the determination by lapse of time or otherwise 
 of a precedent estate created at the same time. 
 
 "Sec. 11. Where a future estate is dependent upon a precedent 
 
 (279)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 income or interest is supported, or of which it is a part, 
 shall be appraised immediately after such transfer, or as 
 soon thereafter as may be practicable, at the fair and clear 
 market value thereof, at that time; provided, however, that 
 when such estate, income or interest shall be of such a na- 
 ture that its fair and clear market value cannot be ascer- 
 tained at such time, it shall be appraised in like manner at 
 the time when such value first became ascertainable. The 
 value of every future or contingent or limited estate, in- 
 come, interest, or annuity dependent upon any life or lives 
 in being, shall be determined by the rule, method, and 
 standard of mortality and value employed by the superin- 
 tendent of insurance in ascertaining the value of policies 
 of life insurance and annuities for the determination of 
 liabilities of life insurance companies, except that the rate 
 of interest for computing the present value of all future 
 and contingent interests or estates shall be 5 per centum 
 per annum." 7T The superintendent of insurance shall, on 
 the application of any surrogate, determine the value of 
 
 estate it may be termed a remainder and may be created and trans- 
 ferred by that name. 
 
 "Sec. 12. A reversion is the residue of an estate left in the re- 
 mainder-man or heirs or in the heir of the testator commencing in 
 possession on the determination of a particular estate granted or 
 devised. 
 
 "Sec. 13. Future estates are either vested or contingent. They 
 are vested when there is a person who would have an immediate 
 right to the possession of the lands upon the ceasing of the inter- 
 mediate or precedent estate. They are contingent whilst the per- 
 son to whom or the event upon which they are limited to take effect 
 remains uncertain." 
 
 "Sec. 35. Expectant estates are descendible, devisable and alien- 
 able in the same manner as estates in possession." 
 
 Upon these sections see Griffon v. Shephard, 124 N. Y. 70, 20 N. 
 E. 339, affirming 40 Hun, 355; Talmadge v. Seaman. 85 Hun, 242, 32 
 N. Y. Supp. 900, reversed as In re Seaman (Oct. 8, 1895; Ct. App.) 
 41 N. E. 401; In re Tobias. 12 N. Y. Law J. 1104. 
 
 77 Appendix, I. e.. Laws 1892, c. 399, § 11. 
 (280)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 any such future or contingent estates, income, or interest 
 limited, contingent, dependent, or determinable upon the 
 life or lives of persons in being, upon the facts contained 
 in any such appraiser's report, and certify the same to 
 the surrogate; and his certificate shall be conclusive evi- 
 dence that the method of computation adopted therein is 
 correct. 78 
 
 The statute further provides 79 that all taxes imposed 
 by the act shall be due and payable at the time of the 
 transfer, — i. e. the death of the decedent: 80 provided, how- 
 ever, that taxes upon the transfer of any estate, property, 
 or interest therein, limited, conditioned, dependent, or de- 
 terminable upon the happening of any contingency or fu- 
 ture event, by reason of which the fair market value thereof 
 cannot be ascertained at the time of the transfer as herein 
 provided, shall accrue and become due and payable when 
 the persons or corporations beneficially entitled thereto 
 shall come into actual possession of enjoyment thereof. 
 
 Any person or corporation beneficially interested in any 
 property chargeable with a tax, * * * and execu- 
 tors, administrators, and trustees thereof, may elect with- 
 in one year from the date of the transfer thereof, as herein 
 provided, not to pay such tax until the person or persons 
 beneficially interested therein shall come into the actual 
 possession or enjoyment thereof. 81 
 
 The statute provides s2 that the words "estate" and "prop- 
 erty," as used in the act, shall be taken to mean the prop- 
 erty or interest therein of the testator, intestate, grantor, 
 bargainor or vendor, passing or transferred to those not 
 herein specifically exempted from the provisions of the 
 
 ts Laws 1892. c. 399, § 13. 
 
 7 9 Laws 1S92, c. 399. § 3. 
 
 so See In re Vassar, 127 N. Y. 8, 27 N. E. 394. 
 si Laws 1892, e. 399, § 7. See Appendix, I. e. 
 
 8 2 Laws 1892, c. 399, § 22. 
 
 (2S1J
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. G 
 
 act, and not as the property or interest therein passing 
 or transferred to individual legatees, devisees, heirs, next 
 of kin, grantor, donees, or vendees; 83 and shall include all 
 property or interest therein, whether situated within or 
 without the state, over which the state has any jurisdic- 
 tion for the purposes of taxation. 84 The word "transfer," 
 as used in the act, shall be taken to include the passing of 
 property or any interest therein in possession or enjoy- 
 ment, present or future, by inheritance, descent, devise, be- 
 quest, grant, deed, bargain, sale, or gift in the manner 
 prescribed. 85 
 
 (3) Decisions under These Acts. 
 
 The liability to taxation of remainder-men and of future 
 or contingent estates under the acts of 1885, 1887, 1892, 
 may be summarized in the following order, and, while the 
 law on this subject is much better settled, it must be con- 
 ceded that many of the questions discussed with refer- 
 ence to such estates have not yet been definitely deter- 
 mined by the highest courts in Xew York. 
 
 (a) Vested Estates. 
 
 So far as vested remainders or estates are concerned, 
 the tax upon them is held to be due and payable imme- 
 diately upon decedent's death. 86 All other things being 
 
 S3 This section materially changes the law as it originally stood 
 under the acts of 1885 and 1887. See In re Hoffman's Estate, 143 
 N. Y. 334, 38 N. E. 311. 
 
 84 See, as to jurisdiction over the estate of a nonresident, also 
 chapter 4. See In re James, 144 N. Y. G, 38 N. E. 901. 
 
 8 5 For the taxation of estates in expectancy or possession under 
 the retroactive clause (Act 1892, c. 399, § 1, subd. 3), see the subject 
 considered post, § 58, subds. c, 3f ; also, Talmadge v. Seaman, 85 Hun, 
 242, 32 N. Y. Supp. 906, reversed as In re Seaman (Oct. 8, 1S95; Ct. 
 App.) 41 N. E. 401. 
 
 ss In re Vinot's Estate (Surr.) 7 N. Y. Supp. 517; In re Van Rens- 
 selaer, N. Y. Law J. May 28, 1SS9; In re Cogswell, 4 Dem. Sur. 248; 
 In re Le Fever, 5 Dem. Sur. 184; In re Higgins' Estate, 30 N. Y. 
 (282)
 
 Ch. 6J VESTED AND CONTINGENT ESTATES. § 58 
 
 equal, in the construction of wills the general rule is to 
 favor the vesting of estates as of the death of the testator, 
 rather than a suspension of the gift or devise. 87 But a 
 mere technical vesting of the nominal fee in estates in re- 
 mainder of a contingent nature does cot authorize their 
 taxation as of the time of death. It was never intended 
 by the law to tax a theory having no real substance be- 
 hind it. The law itself gives abundant evidence in its 
 language of the intent to subject only real and beneficial 
 
 Daily Reg. 90G: In re Graver's Estate (Surr.) 34 N. Y. Supp. 474. 
 See note on "Vested Estates," etc., 18 Abb. N. C. 300, where it is 
 said: "Limitations of future or contingent interests in personal 
 property are subject to the same rules so far as prescribed in 1 Rev. 
 St. p. 722, etc., in relation to future estates in land [Id. p. 773, § 2J. 
 But, notwithstanding this provision, the distinction between what is 
 termed 'vesting' in the one case and in the other continues. The 
 term 'vested' is constantly used of legacies to indicate more than 
 not being contingent, in the common use of that term, as to estates 
 in real property, viz. to indicate one which is not subject to be di- 
 vested,— one that is not defeasible from lapse of time or otherwise. 
 A legacy is not said to be vested except when the legatee, if sui 
 juris, has power to extinguish by release or give perfect title by as- 
 signment. * * * Where words of futurity are annexed to the sub- 
 stance of the gift, and there is nothing in the will to manifest a dif- 
 ferent intention, the gift itself will be deemed future, and the ques- 
 tion of who is the beneficiary will be deemed dependent upon that 
 state of facts when that future time shall arrive; and in this class 
 of cases * * * the legacy is said meanwhile not to be vested, 
 although, if it were an estate in real property given by the same 
 language, it would technically be called a 'vested' as distinguished 
 from a 'contingent' remainder." Talmadge v. Seaman, 85 Hun, 242, 
 32 N. Y. Supp. 900; reversed, see note S5, p. 282; In re Curtis, 
 142 N. Y. 219, 36 N. E. SS7; Id., 73 Hun, 1S5, 25 N. Y. Supp. 909; 
 In re Hoffman's Estate, 143 N. Y. 334, 38 N. E. 311; In re Vassar, 
 127 N. Y. 8, 27 N. E. 394. See the subject further considered, chap- 
 ter 5. See Com. v. Smith, 20 Pa. St. 100; Com. v. Eckert, 53 Pa. St. 
 105; In re Nieman's Estate, 131 Pa. St. 346, 18 Atl. 900. 
 
 st Thomson v. Hill (Sup.) 33 N. Y. Supp. 812; Jaudon v. Hayes, 79 
 Hun, 455, 29 N. Y. Supp. 95S. 
 
 (283)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 interests to taxation, and nothing in its policy justifies 
 the imposition of such a burden where no corresponding 
 benefit has been received. 88 It does not follow because 
 the legislature taxes persons beneficially entitled to prop- 
 erty or income, in possession or expectancy, that a tax was 
 thereby imposed upon an interest that may never vest. 
 Until that time arrives, the power to tax does not exist. 89 
 
 In disposing of questions under these tax acts the legal 
 divisions of estates as classified and defined in the Revised 
 Statutes do not control, but the language referring to the 
 character of the estates that should be taxed must be 
 taken in its ordinary and popular sense; and where the 
 act provides for a transfer tax as against those who be- 
 come "beneficially entitled in possession or expectancy," it 
 was intended by the legislature not to tax a mere legal 
 estate or interest, which might or might not ripen into a 
 beneficial one. The obligation to pay the tax was not to 
 be imposed except upon one who has "a present enjoy- 
 ment, or a fixed and absolute right of future enjoyment," of 
 property. 00 
 
 Where a wife was, with her husband, tenant by the en- 
 tirety of certain real estate under decedent's will, her in- 
 terest, being certain and ascertainable, and being substan- 
 tially that of a vested remainder under the statute, is taxa- 
 ble during her husband's lifetime, especially as by law 01 
 she has power to make immediate partition of her share. 92 
 
 88 Finch, J., in Re Curtis, 142 N. Y. 223, 3G N. E. 887; Talmadge 
 v. Seaman, 85 Hun, 242, 32 N. Y. Supp. 90G. 
 
 so In re Roosevelt's Estate, 143 N. Y. 120, 38 N. E. 281. 
 
 so Talmadge v. Seaman, supra; In re Tobias, N. Y. Law J. Feb. 
 8, 1S95. 
 
 oi Laws N. Y. 1880, c. 472. 
 
 9 2 in re Higgins, supra. But see, as construing this statute, O'Con- 
 nor v. McMahon, 54 Hun, GG, 7 N. Y. Supp. 225; Stelz v. Schreck 
 (Sup.) 10 N. Y. Supp. 790; Beach v. Hollister, 3 Hun, 519. See New- 
 ell v. Newell, 7 Ch. App. 253. 
 (284)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 A devise of premises to E., "and at her decease to become 
 the property of her son G.," gives E. a life estate, and a 
 vested remainder to G., which is appraisable and taxable. 93 
 
 (b) Contingent or Future Estates. 
 
 Where, as we have seen, 94 for any reason it becomes im- 
 possible to appraise or value at decedent's death any con- 
 tingent or future estate devised to take effect upon the 
 termination of a preceding estate, or upon any uncertain 
 event, or it cannot be determined to whom such contingent 
 interest will pass, no tax can then be imposed upon such 
 contingent interest until it actually vests in the possession 
 or enjoyment of the heir, devisee, or beneficiary. 95 
 
 This was the rule announced under the statutes in force 
 prior to 1S92, and it was said that in such cases the provi- 
 sion of the statute requiring the remainder-men to file the 
 conditional bond was not applicable. 96 Substantially the 
 same rule is adopted in Pennsylvania. 97 
 
 »3 in re G rover's Estate (Surr.; 1895) 34 N. Y. Supp. 474. 
 
 94 Chapter 5, § 54, subd. d. 
 
 9 5 in re Cager's Will, 111 N. Y. 343, 18 N. E. 806; In re Stewart, 
 131 N. Y. 277, 30 N. E. 184; In re Curtis (1894) 142 N. Y. 219, 3«J 
 N. E. S87, affirming 73 Hun, 185, 25 N. Y. Supp. 909; In re Roose- 
 velt's Estate, 143 N. Y. 120, 38 N. E. 281, affirming 7G Hun, 257, 27 
 N. Y. Supp. 741; In re Hoffman's Estate, 143 N. Y. 334, 38 N. E. 
 311, affirming 76 Hun, 399, 27 N. Y. Supp. 1080; In re Le Fever, 5 
 Dem. Sur. 1S4; In re Wallace (Suit.) 4 N. Y. Supp. 4G5, 4GG, citiug 
 In re Bruce (not reported); In re Millward's Estate, G Misc. Rep. 425, 
 27 N. Y. Supp. 28G; Talmadge v. Seaman, S5 Hun, 242, 32 N. Y. Supp. 
 906, reversed as In re Seaman (Oct. 8, 1895; Ct. App.) 41 N. E. 
 401; In re Wheeler's Estate, 1 Misc. Rep. 450, 22 N. Y. Supp. 1075. 
 Form of order in such cases given under acts of 1885 and 1S87. In re 
 Cogswell, 4 Dem. Sur. 248; In re Hopkins, 6 Dem. Sur. 1; In re 
 Le Fever, supra; In re Surrogate of Cayuga Co., 46 Hun, 657; In re 
 Clark (Surr.) 5 N. Y. Supp. 199; In re Fleming's Estate, N. Y. Law 
 J. Oct. 15, 1889; In re Benjamin, 36 N. Y. Daily Reg. 906. 
 
 96 In re Cager, 111 N. Y. 349, 350, 18 N. E. 866; In re Lord, 10 N. 
 Y. Law J. 260. 
 
 »7 in re Nieman's Estate, 131 Pa. St. 346, 18 Atl. 900. But see In 
 
 (285)
 
 § 58 VESTED AND CONTINGENT ESTATES. fCh. 6 
 
 In Re Cager,* which is the earliest case upon this subject, 
 decedent, Cager, left a life estate to his widow in the property 
 devised, giving her, however, a limited power of disposition 
 during life over the corpus of the estate, with remainder over 
 of what should remain to collateral heirs; and it was ruled 
 that, as she had power during life to dispose of the whole 
 estate by any means except by will, any interest in the other 
 legatees was wholly dependent upon whether the power of 
 disposition 08 was exercised by the life tenant during her life- 
 time," and that while it was possible that the remainder-men 
 might eventually take a valuable estate under the will, that 
 event, being contingent upon the nonexercise by the widow 
 of the power of disposition, rendered the present appraisable 
 value of such interest impossible of any correct or reason- 
 able approximate valuation, and hence it was not liable 
 to taxation. The court said: "When the question as to 
 whether any property at all shall pass under the limita- 
 tion over, and if so, how much, depends upon the will of the 
 
 re Brewer's Estate, 15 Pa. Law J. (N. S.) 433, 435, 16 Pa. Law J. 
 (N. S.) 114. 
 
 * 111 N. Y. 349, 350, 18 N. E. 866. 
 
 »8 By Rev. St. N. Y. (Banks' 8th Ed.) p. 2446, it is provided: 
 
 "Sec. 81. Where an absolute power of disposition not accompanied 
 by any trust shall be given to the owner of a particular estate for 
 life or years, such estate shall be changed into a fee absolute in re- 
 spect to the rights of creditors or purchasers, but subject to any 
 future estate limited thereon in case the power should not be exe- 
 cuted, or the lands should not be sold for the satisfaction of debt." 
 
 "Sec. 85. Every power of disposition shall be deemed absolute by 
 means of which the grantee is able in his lifetime to dispose of the 
 entire fee for his own benefit." 
 
 so Citing Van Home v. Campbell, 100 N. Y. 287, 3 N. E. 316, 771; 
 Smith v. Van Ostrand, 64 N. Y. 278; Terry v. Wiggins, 47 N. Y. 512. 
 See, also, In re Le Fever, 5 Dem. Sur. 24. As to when husband does 
 not take an estate in fee, etc., see important case Rose v. Hatch, 125 
 N. Y. 427, 26 N. E. 467. As to what constitutes power of disposition 
 in life tenant, see Flanagan v. Flanagan, 8 Abb. N. C. 416; Wager v. 
 (280)
 
 Ch. 6J VESTED AND CONTINGENT ESTATES. § 58 
 
 first taker, we are unable to see any rule by which such 
 value (of the contingent estate) can be ascertained." 
 
 In such cases it was held that, there being no basis upon 
 which the value of the devise over could be appraised, 
 there was no foundation for the imposition of the tax. 100 
 
 So where the widow, as life tenant, has a right to use 
 the principal to make up a deficiency in the income allowed 
 her under the will, and it appears that the whole estate 
 may be absorbed during her lifetime, there can be no taxa- 
 tion of the remainder. 101 
 
 And where decedent bequeathed the residue of her estate 
 to her executor, in trust to collect, invest, and pay the 
 net income to her brother for life, with discretionary power 
 to expend certain sums annually for his support, with re- 
 mainder to collaterals, the court said: 102 "It is impossi- 
 ble to determine how long he (the life tenant) may live, 
 and how much of the principal fund may be used for him 
 by the executor in the exercise of the limited discretion 
 conferred upon him by will; indeed, it is possible that 
 the whole residuum may be exhausted in the use of the 
 discretionary power." 103 
 
 And where the remainder-men take upon the contin- 
 gency of surviving the life tenant, or of reaching a cer- 
 tain age, their interests are not taxable at decedent's death, 
 but only at the time the contingency happens; 104 the rule 
 
 Wager, 96 N. Y. 174; Livingstone v. Murray, 68 N. Y. 48G; Ackerman 
 v. Gorton, 67 N. Y. 63; Haynes v. Sherman, 117 N. Y. 233, 22 N. E. 
 938; Thomas v. Wolford (Sup.) 1 N. Y. Supp. 610. 
 
 ioo in re Cager's Will, 111 N. Y. 349, 350, 18 N. E. 866. 
 
 ioi In re Fleming's Estate, N. Y. Daily Reg. Oct. 15, 1889. See 
 In re Leavitt (Surr.) 4 N. Y. Supp. 179; In re Millward's Estate 
 (Surr.) 27 N. Y. Supp. 286. 
 
 102 in re Hopkins, 6 Dem. Sur. 1. 
 
 103 As to discretionary powers, see In re Stewart, 131 N. Y. 586, 
 SO N. E. 184; Id. (Surr.) 10 N. Y. Supp. 15; and post, § 60. 
 
 104 in re Wallace's Estate (Surr.) 4 N. Y. Supp. 465; In re Bruce, 
 
 (287)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Cll. 6 
 
 in one case being announced that a contingent remainder 
 is neither appraisable nor taxable until the defeating con- 
 tingency has been forever rendered impossible of occur- 
 rence. 108 
 
 These rulings, under the early statutes in force until 1892, 
 were, in all respects, subsequently confirmed in elaborate 
 opinions by the court of appeals in Re Curtis, and other 
 cases. 106 
 
 In that case the question arose under the act of 1885. 107 
 The facts were that the will of C. created trusts for the 
 benefit of her two daughters, each trust for the life of the 
 beneficiary. The remainders were given, one-half to such 
 of her nephews, and one-half to such of her nieces, named, 
 as should be living at the time of the successive termina- 
 tion of each trust; if any of them should then be dead 
 leaving issue, to such issue. It was held that the re- 
 mainders were not liable to taxation under the act until 
 the successive termination of each trust; that it could 
 not until then be determined whether the trust fund would 
 pass to persons in whose hands it would be taxable or to 
 others in whose possession it would be exempt, as, in case 
 of the death of the nephews or of the nieces named prior 
 to the expiration of the trust, the one-half of the remain- 
 der would go to the heirs at law of the testatrix; also 
 
 cited in 4 N. Y. Supp. 406 (not reported); In re Le Fever, 5 Dem. Sur. 
 184; In re Matthews' Estate, N. Y. Law J. July 27, 1889; In re 
 Fleming's Estate, N. Y. Law J. Oct. 15, 1889; In re Benjamin's 
 Estate, 36 N. Y. Daily Reg. 906. 
 
 105 in re Le Fever, supra; In re Benet, N. Y. Law J. March 4, 1S89. 
 
 ice 142 N. Y. 219, 36 N. E. 887 (1894), affirming 73 Hun, 185, 25 
 N. Y. Supp. 909: In re Roosevelt's Estate (1894) 143 N. Y. 120. 38 
 N. E. 281, affirming 76 Hun, 257, 27 N. Y. Supp. 741; In re Hoff- 
 man's Estate (1S94) 143 N. Y. 327, 38 N. E. 311, affirming 76 Hun, 
 399, 27 N. Y. Supp. 1086. See, also, Talmadge v. Seaman, 85 Hun, 
 242, 32 N. Y. Supp. 906, reversed as In re Seaman (Oct. 8, 1895; 
 Ct. App.) 41 N. E. 401. 
 
 107 Laws 18S5, c. 483. 
 (288)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 that, conceding there was, upon the death of the testa- 
 trix, a technical Testing of the remainders in the benefi- 
 ciaries named, this nominal fee might never become a tax- 
 able estate. 
 
 Finch, J., said : " * * * Until the end of the trusts, 
 it cannot be determined whether the property passing by 
 the remainders will be taxable at all; that is to say, 
 whether it will pass actually and beneficially to persons 
 in whose hands it will be taxable, or to others in whose 
 possession it will be exempt. If in the end these remain- 
 ders go to the nephews and nieces, a tax will be imposed; 
 but if, instead of passing to them, the remainders should 
 go to the children and grandchildren, they would be ex- 
 empt from taxation. Under this will, however, while we 
 may speculate as to the technical location of the fee pend- 
 ing the running of the trusts, the actual and beneficial in- 
 terests in remainder may pass wholly to the two daughters 
 by intestacy. If, before the termination of the trusts, the 
 two nieces, children of R, should die without leaving issue 
 or issue living at the supposed date, the will would fail to 
 operate upon one-half of the estate in remainder, and that 
 would devolve at once upon the two daughters as heirs or 
 next of kin. In like manner, if the three nephews should 
 die without issue living, as one of them already has, the 
 other half of the remainder would take the same direc- 
 tion; so that until the termination of the trusts it will 
 be impossible to know whether the remainders are in truth 
 taxable or not. Prior to that event, the state cannot es- 
 tablish that any beneficial interest will pass to persons in 
 whose hands it will be taxable; and, until it can show 
 that vital and necessary fact, its right to tax cannot arise. 
 A time will come, at the close of the trusts, when the 
 question can be settled; and, if then the property passes 
 to the nephews and nieces, the proper assessment can be 
 made and collected. * * * The only possible answer is 
 law inher.— 19 (289)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 that made by the surrogate. He says that the remainders 
 vested in the nephews and nieces at once upon the death of 
 the testatrix, and so became contingent interests, taxable 
 under the law. If that technical vesting be admitted, 
 what so passed was rather a theoretical possibility than a 
 tangible reality, for the life estate was in the trustee of 
 the daughters carrying the whole beneficial use. There 
 was no power over it in the contingent remainder-men; 
 and the nominal and technical fee might never become a 
 taxable estate. It was never intended by the law to tax 
 a theory having no real substance behind it. As was said 
 in Re Swift, 108 the question of taxation is one of fact, and 
 cannot turn on theories or fictions. This case illustrates 
 one result of the contrary doctrine. W. R., a nephew 
 named, had died without issue. He never took anything 
 beneficial under the will, and his estate can take noth- 
 ing, and yet it is assessed for about $1,000, which, it is 
 said, will more than exhaust all that he left, and in return 
 for which he received actually nothing, and theoretically 
 only an unsubstantial legal fabric. That is too unjust to 
 be borne. * * * The law itself gives abundant evi- 
 dence in its language of the intent to subject only real 
 and beneficial interests to taxation, and nothing in its pol- 
 icy justifies the imposition of such a burden where no cor- 
 responding benefit has been received." 
 
 "When it is only in the chance of uncertain future events 
 that such an interest will alight where it will be taxable 
 at all, a delay until the contingency is solved is neces- 
 sary and proper." 
 
 The question was again considered in Re Roosevelt's Es- 
 tate, 109 under the act of 1887. In that case decedent's 
 residuary estate was given to his executors in trust to 
 
 108 137 N. Y. 80, 32 N. E. 1096. 
 loo 14:; N. Y. 120, 3S N. E. 281. 
 (290)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 pay the income to his wife for life, and at her death the 
 estate was given to other beneficiaries, subject to seven life 
 annuities, with interests in these latter, in the nature of 
 cross remainders, contingent upon survival inter sese. In 
 confirming the ruling of the supreme court 110 that the 
 annuities and contingent remainders were not taxable at 
 decedent's death, Bartlett, J., in the court of appeals, said: 
 
 "Two questions are presented for our determination, viz.: 
 First, are the annuities created by the will such property, 
 in a legal sense, as to be presently taxable, and can their 
 fair market value at the time of decedent's death be ascer- 
 tained? second, is the fair and clear market value, at the 
 time of testator's death, of the estates in remainder, ascer- 
 tainable, and is the tax thereon due at once? In decid- 
 ing both of these questions we are to reasonably construe 
 the statute, and give effect, if possible, to all its provi- 
 sions. As to the annuities, the appellant's counsel con- 
 tends that they are entitled to an interest in or income 
 from the property of the testator, and the statute requires 
 the tax to be paid immediately. * * * It is not to 
 be assumed that the legislature intended to compel the 
 citizen to pay a tax upon an interest he may never receive, 
 and the reasonable construction of this statute leads to no 
 such unjust result. 
 
 "It does not follow because the legislature taxes persons 
 beneficially entitled to property or income, in possession 
 or expectancy, that a tax was thereby imposed upon an 
 interest that may never vest. Until that time arrives the 
 power to tax does not exist. The testator has created seven 
 life annuities if the annuitants survive his wife, and there 
 can be no vested interest in any of them until the happen- 
 ing of that event. All may survive, a portion may be liv- 
 ing, every one may be dead. To hold such a possibility 
 
 iio76 Hun. 257, 27 N. Y. Supp. 741. 
 
 (291)
 
 § 58 VESTED AND CONTINGENT ESTATES. |_Ch. ^ 
 
 presently taxable, and its value capable of immediate com- 
 putation, shocks the sense of justice. This brings us to 
 the remaining question of the taxation of the estates in 
 remainder. The testator has, on the death of his wife, 
 given his entire estate to 12 nephews and nieces, subject 
 to the payment of the annuities. Two of these remain- 
 der-men died before the testator. It is contended by the 
 respondents that it is impossible to ascertain the fair and 
 clear market value of these remainders at the time of the 
 death of the testator, for the reason that the annuitants rep- 
 resent estates or interests, unvested and contingent, which, 
 taken in connection with the life estate of the widow, ren- 
 ders the present value of the ultimate remainders unas- 
 certainable. The amount that will ultimately be paid to 
 the remainder-men is contingent, depending on future 
 events. 
 
 "Whenever the tax on annuitants is payable the estate 
 must pay it. What the amount of the tax will be depends 
 upon the survivorship of annuitants, and the number of life 
 annuities, if any, that shall vest on the death of the widow. 
 
 "This court has recently decided that it is not the vest- 
 ing of remainders that renders them contingent, taxable 
 interests under the law. 111 In the case cited it was held 
 that the nominal fee might never become a taxable estate, 
 for the reason that, if the nephews and nieces in whom 
 it was claimed to have vested died without issue before 
 the termination of certain trusts, the fee would pass to 
 lineals, not taxable. This was the uncertainty which post- 
 poned the payment of the tax. In case at bar there is a 
 contingency affecting the value of the estate, as already 
 indicated, which brings it strictly within the principle of 
 the Curtis Case." 
 
 So the same doctrine was announced in the recent Case 
 
 in In re Curtis, 142 N. Y. 219, 36 N. E. 887. 
 (292)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 of Hoffman. 112 In this case the income of a certain fund 
 was bequeathed to the testatrix's mother for life, and, upon 
 her death, such income was bequeathed to testatrix's 
 daughter for life, and upon her death the principal sum 
 was directed to be paid to her issue. If no issue survived 
 her, she having survived testatrix's mother, then, upon her 
 death without issue, one-half of the fund should be paid 
 to a niece of testatrix and the other half to another niece. 
 It was further provided that, in case of the death of the 
 daughter before testatrix's mother, the fund should go to 
 the issue of such daughter, if any. If no issue survived 
 said daughter, one-half each of said fund should go to said 
 nieces or their legal representatives. 113 
 
 Finch, J., said: "As to the estates of the daughter Ella 
 and the granddaughter Olga, we agree with the conclu- 
 sions of the general term. By the will the mother took a 
 life estate. If upon her death Ella survives, the latter 
 will take a life estate, but, if she dies before her mother, 
 Ella will take nothing, and have no estate to be taxed. 
 In that event there will be no actual transfer to her of 
 any portion of the property of decedent. She ought not 
 to be taxed until events make it certain that there is an 
 actual and beneficial transfer of the property to her. The 
 remainder goes to Olga, if she is living at the death of her 
 mother; but, if she is then dead without issue, that re- 
 mainder goes to certain nephews and nieces. If it goes 
 to her, it will be taxable at one per cent, but, if to the 
 collaterals, then at five per cent. 114 Until events deter- 
 mine the question, it cannot be known what tax is charge- 
 able, nor by whom it is payable. Our decision in Re Cur- 
 
 112 143 N. Y. 334, 38 N. E. 311, affirming 76 Hun, 399, 27 N. Y. 
 Supp. 1086; Talmadge v. Seaman, supra. 
 
 us See 76 Hun, 399, 27 N. Y. Supp. 10S6, for provisions of the 
 will in this case. 
 
 H4 This under the act of 1S92, Appendix, I. e. 
 
 (293)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 tis 115 is not decisive, because the facts are essentially dif- 
 ferent; but in that case I expressed what was our de- 
 cided drift of opinion in cases more like the present, and 
 fairly settled later in Re Roosevelt's Estate. 116 We are 
 obliged to follow one of two lines of construction. We 
 must open all the nice and difficult questions which arise 
 under a will as to the vesting of technical legal estates, 
 although future and contingent, and assess the tax upon 
 what are in reality only possibilities and chances, and so 
 complicate the statute with the endless brood of difficult 
 questions which gather about the construction of wills; 
 or we must construe it in view of its aim and purpose, and 
 the object it seeks to accomplish, and so subordinate tech- 
 nical phrases to the facts of actual and practical owner- 
 ship. 
 
 "For taxation is a hard fact, and should attach only to 
 such ownership, and may properly be compelled to wait 
 until chances and possibilities develop into the truth of 
 an actual estate possessed, or to which there exists an 
 absolute right of future possession. I am not shutting my 
 eyes to the statutory language, which is quite broad. The 
 property taxed may be an estate 'for a term of years or 
 for life or determinable upon any future or contingent 
 estate' or 'a remainder, reversion, or other expectancy,' and 
 the tables of mortality may be resorted to for the ascer- 
 tainment of values. And yet it is the 'fair market value,' 
 the 'fair and clear market value,' which is to be assessed, 
 and with the proviso that, if that value cannot be at once 
 ascertained, the appraisal is to be adjourned. I can scarce- 
 ly imagine a contingency depending upon lives which math- 
 ematics could not solve by the doctrine of chances and the 
 averages of mortality, and there could hardly be an ad- 
 
 115 142 N. Y. 219, 36 N. E. 887. 
 us 143 N. Y. 120, 3S N. E. 281. 
 (294)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 journment unless upon some rare contingency having no 
 averages, and the results in cases dependent upon lives 
 might still leave the 'fair and clear market value' in doubt, 
 and yield sums which no sale in the market would pro- 
 duce. My judgment is further guided by the very sig- 
 nificant definition of the word 'transfer' in section 22. It 
 'shall be taken to include the passing of property, or any 
 interest therein, in possession or enjoyment, present or 
 future.' It thus contemplates a present enjoyment, or a 
 fixed and absolute right of future enjoyment, and adjourns 
 the appraisal until the fulfillment of contingencies leaves 
 those results attained. Here there must be that adjourn- 
 ment until the rights of Ella and Olga become fixed and 
 actual. The result does no injustice to the state. The 
 trust fund must remain in the hands of the executors to 
 feed the life estates and for payment over of the remainder. 
 The executors must pay the tax when they know against 
 whom it is chargeable, and the rate to be assessed. The 
 state will get its tax when the legatees get their property." 
 
 So the value of a bequest to testator's widow for life, or 
 until she marries again, cannot be determined for the pur- 
 pose of taxation under the transfer tax law until the termi- 
 nation of the widow's estate by death or marriage. "While 
 we have an established method for ascertaining the value of 
 the life estate of a widow, based upon an arbitrary rule as 
 to probable time of death, there is lacking any such rule to 
 enable us to approximate the period, when, if at all, she may 
 remarry. That defies all calculation. Hence the value of 
 her estate or of the remainder cannot now be ascertained 
 for the purpose of the assessment of the tax." 117 
 
 Where the business of the partnership testator was con- 
 cerned in was to be continued by the executors till it could 
 
 i it Coffin, S., in Re Millward's Estate (1894) 6 Misc. Rep. 425, 27 
 N. Y. Supp. 288. 
 
 (295)
 
 § 5S VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 be disposed of to advantage, and this course was essential 
 to realizing the full value of it, the assessment and collec- 
 tion of the tax \v;is post] toned until the beneficiaries came 
 into actual possession. 118 
 
 A devise of a remainder after a life estate, if the person 
 named as a remainder-man be then living with limitation 
 over in case he then be dead, is not taxable during the life- 
 time of the life tenant. 119 
 
 (c) When not Taxable nor Appraisable at Death. 
 
 So, under recent rulings, and under the act of 1892, such 
 future or contingent interests are neither taxable nor ap- 
 praisable where the value cannot be ascertained at the de- 
 cedent's death, and not until they vest in the actual posses- 
 sion or enjoyment of the beneficiary, or until the contin- 
 gency happens. 120 
 
 The act of 1802 121 provides that if the taxable property 
 shall be an estate, income, or interest for a term of years, 
 or for life, or determinable upon any future or contingent 
 estate, or shall be a remainder or reversion or other expect- 
 ancy, real or personal, the entire property or fund by which 
 such estate, income, or interest is supported, or of which it 
 is a part, shall be appraised immediately after such transfer, 
 or as soon thereafter as may be practicable, at the fair and 
 clear market value thereof, at that time; provided, how- 
 ever, that when such estate, income, or interest shall be of 
 
 us in re Wheeler's Estate, 1 Misc. Rep. 450, 22 N. Y. Supp. 1075. 
 us In re Westcott's Estate (1895) 11 Misc. Rep. 589, 33 N. Y. Supp. 
 426; following In re Hoffman's Estate, 143 N. Y. 327, 38 N. E. 311. 
 
 120 see Appendix, I. e, Laws 1892, c. 399, §§ 3, 7, 11. 13, 22; In 
 re Curtis, 142 N. Y. 223, 36 N. E. 8S7; In re Roosevelt's Estate, 
 143 N. Y. 120, 38 N. E. 281; In re Hoffman's Estate, 143 N. Y. 327, 
 38 N. E. 311; In re Mill ward's Estate (1894) 6 Misc. Rep. 425, 27 N. 
 Y. Supp. 2S8, and cases supra. 
 
 121 Act 1892, supra. 
 (296)
 
 -Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 such a nature that its fair and clear market value cannot 
 be ascertained at such time, it shall be appraised in like 
 manner at the time when such value first became ascertain- 
 able. The act further authorizes the state superintendent 
 of insurance to determine the value of such estates by the 
 rule, method, and standard of mortality and value employed 
 by him in ascertaining the value of policies of life insurance 
 and annuities, and his certificate is made conclusive evi- 
 dence that the method of computation therein is correct. 122 
 The statute further provides that all taxes shall be due and 
 payable at the time of transfer; provided, however, that 
 taxes upon the transfer of any estate, property, or interest 
 therein, limited, conditioned, dependent, or determinable 
 upon the happening of any contingency or future event, by 
 reason of which the fair market value thereof cannot be 
 ascertained at the time of the transfer as herein provided, 
 shall accrue and become due and payable when the persons 
 or corporations beneficially entitled thereto shall come into 
 actual possession or enjoyment thereof. 
 
 In Re Curtis 123 the question of the taxation of contingent 
 estates was determined under the act of 1885, containing 
 no such provisions as those above, but the question of the 
 appraisement of such estates was not passed upon, although 
 the court did say that a time would come at the close of the 
 trusts when the question of their taxation could be settled, 
 and if then the property passed to taxable persons the proper 
 assessment could be made and collected. But O'Brien, J., 
 in the court below, 12 * said: "No appraisement of the contin- 
 gent interests of the collateral relatives should be attemp- 
 ted to be made, nor any tax imposed thereon, until such in- 
 terests become vested in possession, and by the removal of 
 
 122 Laws 1892, c. 399, § 13. 123 in re Curtis, supra. 
 
 124 73 Hun, 190, 25 N. Y. Supp. 909. 
 
 (297)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. & 
 
 the contingency it appears whether they have so vested in 
 parties liahle to taxation or in parties exempt." 
 
 In Re Roosevelt's Estate 125 the question arose under the 
 act of 1887, where there were contingent annuities and re- 
 mainders. In deciding these questions in the negative the 
 court said: "To hold such a possibility presently taxable, 
 and its value capable of immediate computation, shocks the 
 sense of justice. * * * In the case at bar there is a 
 contingency affecting the value of the estate, as already in- 
 dicated, which is strictly within the principle of the Curtis 
 Case." 126 And, in referring to the act of 1892, 127 said: "The 
 legislature * * * has given a practical construction to 
 its previous legislation on this subject when it provides that, 
 where the fair market value of the property or interest can- 
 not be ascertained at the time of the transfer, the tax shall 
 become due and payable when the beneficiary shall come 
 into actual possession or enjoyment." 
 
 In Re Hoffman's Estate 128 the question arose under the 
 act of 1892. There were life estates, the income to be paid 
 to the widow for life; and, if the daughter survived, to her 
 for life, the principal at the expiration of the trust to be 
 paid to the issue of the daughter, if any living, at her death; 
 if none, then to two nieces of the testatrix. The testatrix 
 died, leaving her mother, daughter, and a child of the latter 
 surviving. In holding that the interests after the life es- 
 tate of the mother were not taxable until they vested in the 
 actual possession or enjoyment of the beneficiary in remain- 
 der, the court, per Finch, J., said with reference to the ap- 
 praisement of such estates: "I am not shutting my eyes to 
 the statutory language, which is quite broad. The property 
 taxed may be an estate for a term of years, or for life, or 
 
 125 in re Roosevelt's Estate, supra. 
 
 126 in re Curtis, supra. 
 
 127 Chapter 390, § 3. 
 
 12 8 143 N. Y. 327, 3S N. E. 311. 
 (29S)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 determinable upon 'any future or contingent estate' or 'a 
 remainder, reversion, or other expectancy,' and the tables 
 of mortality may be resorted to for the ascertainment of 
 values. And yet, it is the 'fair market value,' the 'fair and 
 clear market value,' which is to be assessed, and with the 
 proviso that if that value cannot be at once ascertained the 
 appraisal is to be adjourned. I can scarcely imagine a con- 
 tingency- depending upon lives which mathematics could not 
 solve by the doctrine of chances and the averages of mortal- 
 ity, and there could hardly be an adjournment unless upon 
 come rare contingency having no averages, and the results 
 in cases depending upon lives might still leave the 'fair and 
 clear market value' in doubt, and yield sums which no sale 
 in the market would produce." The court then referred to 
 the definition of the word "transfer" in section 22, 129 saying: 
 "It thus contemplates a present enjoyment, or a fixed and 
 absolute right of future enjoyment, and adjourns the ap- 
 praisal until the fulfillment of contingencies leaves those 
 results attained." 
 
 (d) When Appraisable at Death. 
 
 Under the early statutes of 1885 and 1887, it was held 
 that where, at the time of decedent's death, the value of the 
 contingent interest or remainder could be ascertained, it was 
 appraisable, but not taxable. This rule finds confirmation 
 in the language of the act of 1892. 130 
 
 The rule does not, it seems, conflict with the preceding 
 rule (c), but, on the contrary, in certain cases, it would seem 
 
 129 Laws 1S92, c. 399. 
 
 130 in re Cager's Will, 111 N. Y. 343, 18 N. E. 866; In re Olark 
 (Suit.) 5 N. Y. Supp. 199; In re Matthews' Estate, N. Y. Law J. 
 July 27, 1889; In re Benet, N. Y. Daily Reg. March 4, 1SS9; In re 
 Leavitt, 4 N. Y. Supp. 179; Appeal of Mellon, 114 Pa. St. 573. 574, 
 8 Atl. 1S3; In re Mercian's Estate, 131 Pa. St. 346, 18 Atl. 900; In re 
 Brewer's Estate. 15 Pa. Law. J. (N. S.) 433, 435, 16 Pa. Law J. (N. S.) 
 114; In re Curtis, 142 N. Y. 219, 36 N. E. S87. 
 
 (299)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 that an appraisement can still be made as of the date of 
 death, where the nature of the contingent interest is not of 
 such a character as to preclude or be incapable of a valua- 
 tion. It is only where it is impossible or impracticable to 
 ascertain the value of the contingent devise that no ap- 
 praisement can be then had. In Re Curtis, 131 decided un- 
 der the act of 1885, the power to appraise at death was 
 doubted where the interest was contingent; but the court 
 said, "It may possibly be that where the only contingency of 
 the future is upon which of several named persons or classes 
 of persons, all of whom are liable to suffer the taxation, the 
 beneficial interests will ultimately devolve, the appraise- 
 ment and assessment need not be postponed, though even 
 that is hardly a prudent construction, but need not now be 
 discussed." 
 
 But this rule would seem to be sanctioned by the act of 
 1892 132 providing that the entire property or fund by which 
 such estate, income, or interest is supported, or of which it 
 is a part, shall be appraised immediately after such transfer, 
 or as soon thereafter as may be practicable, at the fair and 
 clear market value thereof at that time; providing that 
 when such estate, etc., shall be of such a nature that its fair 
 and clear market value cannot be ascertained at such time, 
 it shall be appraised in like manner at the time when such 
 value first becomes ascertainable. The act thus seems to 
 sanction the appraisement where the value can be ascer- 
 tained. 
 
 In Re Cager, decided under the act of 1885, the court said : 
 "Where the present value of the property which is devised 
 to one with a limitation over to others, upon the happening 
 of some event which may or may not occur, can be ascer- 
 tained, then a ground upon which an approximate estimate 
 of the value of the ultimate devise appears, and it may be 
 
 i3i 142 N. Y. 223, 36 N. E. 887. 
 132 Chapter 399, §§ 3, 11, 13. 
 (300)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 made." And the act enables a tax to be imposed and col- 
 lected upon the ulterior devise through the medium of a bond 
 to be given by the respective legatees, payable when they 
 come into possession of the devised property. 133 Whether 
 the failure in such a case to give the conditional bond re- 
 quired by the statute would make the tax due and collectible 
 immediately has not been determined in this state. 134 
 
 So, in Re Clark, 135 where the question arose as to the 
 liability of contingent annuities to the tax, and when the 
 tax thereon was payable, it was held that, while the value 
 of such annuities could be and was ascertainable at dece- 
 dent's death by appraisement, the tax thereupon was not 
 payable until the annuities (conditioned to take effect upon 
 
 133 Laws 1887, § 2, Appendix, I. a. 
 
 is* See In re Peck (Surr.) 9 N. Y. Supp. 465; In re Clark (Suit.) 5 
 N. Y. Supp. 199; In re Higgins' Estate (Dec. 7, 18S9) 36 N. Y. Daily 
 Reg. 906. In cases arising under this provision of the statute of 
 1887 it does not seem to be the practice in New York to enforce the 
 giving of the conditional bond, but it would appear that under the 
 express language of the statute the tax becomes due and payable 
 immediately if the remainder-man fails to exercise an election by 
 filing the bond within one year after the death of the decedent. The 
 point has, however, never been determined. See In re Cooper's Estate 
 (Appeal of Commonwealth) 127 Pa. St. 435, 17 Atl. 1094; Appeal of 
 Mellon, supra; In re Willing's Estate, 2 Wkly. Notes Cas. 308; In re 
 Wharton's Estate, 10 Wkly. Notes Cas. 106. These authorities would 
 seem to show that under the Pennsylvania law the tax becomes due 
 immediately in such case, for in Cooper's Estate (Appeal of Common- 
 wealth), supra, the court said: "The payment of the tax byremainder- 
 men, which, before this act, was payable at the death of the decedent, 
 may now, at their election, be postponed until they come into actual 
 possession, upon proper security for its payment." See, also, In re 
 Fagely's Estate (Appeal of Commonwealth) 128 Pa. St. 610, 18 Atl. 
 386. 
 
 1355 N. Y. Supp. 199 (Surr.). See, also, In re Hopkins, 5 Dem. 
 Sur. 1; In re Bruce, cited in 4 N. Y. Supp. 466, but net reported. 
 In te Le Fever, 5 Dem. Sur. 185. 
 
 (301;
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 the death of the life tenant before the annuitants) actually 
 vested by the death of such life tenant. 
 
 Ransom, S., in referring to In re Cager, said: 
 "Nothing is said about the assessment or payment of the 
 tax, although the court said that contingent estates might 
 be appraised if their value could be ascertained. The ques- 
 tion is, can the tax be assessed and fixed? The executor 
 cannot diminish the funds which produce the annuities. 136 
 "The contingent annuitants cannot be required to pay 
 for something they may never receive. The act does not 
 say that where property is left to A., an exempt person, for 
 life, with a contingent life estate to B., that A. shall be 
 taxed to pay for B.'s prospective enjoyment, even though B. 
 may never receive it. The act expressly exempts certain 
 persons, and taxes others, and it cannot be rightfully held 
 that where property was left for life to an exempt person, 
 and, after his death, for life to one not exempt, should she 
 survive, in that event the corpus of the estate which is ex- 
 empt should be diminished by the amount of the tax upon 
 the happening of an event which would not make the life 
 tenant liable to the tax whether it did or did not happen, 
 and which, if the contingency should fail, might throw the 
 estate back to persons who were exempt. Neither the first 
 estate nor the last should be taxed for the contingent sec- 
 ond estate. It must be in cases such as this, where it is 
 absolutely impossible to decide to whom the property will 
 go, that the intention is that the appraiser shall report the 
 fair market value of the property at decedent's death, and 
 that the matter must be regarded as suspended until the 
 contingency does or does not happen, at which time — that 
 is, at death of the life tenant — it can be determined to 
 
 13 6 But see In re Johnson, 6 Dem. Sur. 146; In re Leavitt's Estate 
 <Surr.) 4 N. Y. Supp. 179. 
 (302)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 whom the property will pass, and whether or not it is sub- 
 ject to the tax." 13T 
 
 So, where decedent left to a collateral heir property to be 
 given him when he arrived at age, and the income of the 
 fund in the meantime, with a proviso that upon his death 
 before reaching 21 the whole fund should become part of 
 the residuary estate, held that, while the fund was subject 
 to appraisement as of decedent's death, it was not subject 
 to taxation until the contingency occurred; 138 but where 
 two legatees, husband and wife, were tenants by the entirety 
 under the will in certain real estate, it was held that, the 
 wife's interest being known, the property definite, and the 
 event certain, and as she had an interest capable of assign- 
 ment and partition, 139 her estate was both appraisable and 
 taxable at once. 140 
 
 (e) Appraisable and Taxable whenVesting in Possession or Enjoyment. 
 
 Where, in any case, at decedent's death no appraisement 
 of the estate in remainder or future estate can be had for 
 any reason, the tax may, nevertheless, be imposed, and pay- 
 ment enforced upon an appraisement had at the time the 
 estate or interest accrues, to wit, when it vests in actual 
 possession or enjoj'inent. 141 
 
 Under these acts the surrogate has power to appoint an 
 
 137 in re Clark, supra. See In re Bruce, cited in 4 N. Y. Supp. 466; 
 In re Stewart (Surr.) 10 N. Y. Supp. 15; Id., 131 N. Y. 281, 30 N. E. 
 184; In re Le Fever, 5 Dem. Sur. 185. 
 
 138 in re Matthew's Estate, N. Y. Daily Reg. July 27, 1889; In re 
 Benet's Estate, N. Y. Daily Reg. March 4, 1889; In re Van Rens- 
 selaer's Estate, N. Y. Daily Reg. May 26, 1SS9; In re Wilkins' Es- 
 tate, N. Y. Daily Reg. Dec. 7, 1889. 
 
 139 Laws N. Y. 1880, c. 472. 
 
 1*0 in re Higgins, 36 N. Y. Daily Reg. 906, and cases cited supra. 
 
 in In re Curtis, 142 N. Y. 219, 36 N. E. 8S7; In re Roosevelt's 
 Estate, 143 N. Y. 120, 38 N. E. 281; In re Hoffman's Estate, 143 N. 
 Y. 334, 38 N. E. 311; Talmadge v. Seaman, S5 Hun, 242, 32 N. Y. 
 
 (303;
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 appraiser "as often as and whenever occasion may re- 
 quire," 142 to fix the fair market value, at the time of the 
 transfer thereof, of property of persons whose estates shall 
 be liable to taxation; and where the estate or interest is 
 contingent the property shall be appraised immediately after 
 such transfer, or as soon thereafter as may be practicable, 1 4a 
 provided that when such estate, income, or interest shall be 
 of such a nature that its fair and clear market value cannot 
 be ascertained at such time, it shall be appraised in like 
 manner at the time when such value first became ascertain- 
 able. 
 
 In the Cager Case, which arose under the act of 1885, 
 while the court expressly declined to determine the point as 
 to whether an appraisal of the value of the contingent es- 
 tates could be made when they eventually came to the pos- 
 session of the devisees, it suggested that the tax might be 
 altogether lost to the state if an appraisal was not allowed 
 immediately; but the remarks in that case have, it seems, 
 been properly treated as obiter, 144 and it would appear that 
 the scope and object of the provision of the statute allowing 
 an appraisement as often as and whenever occasion might 
 require, 145 was overlooked. 
 
 Supp. 906, reversed as In re Seaman (Oct. 8, 1895; Ct. App.) 41 N. 
 E. 401; In re Stewart, 131 N. Y. 274, 30 N. E. 184; Id. (Surr.) 
 10 N. Y. Supp. 15; In re Wallace's Estate (Surr.) 4 N. Y. Supp. 465; 
 In re Bruce, cited in 4 N. Y. Supp. 466; In re Le Fever, 5 Dem. Sur. 
 184; In re Fleming, N. Y. Law J. Oct. 15, 1S89; In re Clark, 5 N. Y. 
 Supp. 199. See Mellon's Appeal, 114 Pa. St. 570, 8 Atl. 183; In re 
 Cooper's Estate, 127 Pa. St. 435, 17 Atl. 1094; In re Nieman's Es- 
 tate, 131 Pa. St. 346, 18 Atl. 900, and cases cited supra, p. 163. Con- 
 tra, but obiter, In re Cager's Will, 111 N. Y. 343, 18 N. E. 866; In 
 re Hopkins, 6 Dem. Sur. 1. 
 
 1-J2 Cases supra. And see Laws 1885, c. 4S3, § 13; Laws 1887, e. 
 713, § 13; Laws 1892, c. 399, § 11. 
 
 I" Laws 1892, c. 399, § 11. 
 
 14 4 In re Stewart, and cases supra. 
 
 145 Laws 1887, c. 713, § 13; Laws 1892, c. 399, § 11. See Com. 
 v. Freedley, 21 Pa. St. 33; and chapter 5, § 55. 
 (304)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 In Re Stewart 148 the decedent left a portion of her resid- 
 uary estate to a trustee with power of appointment 147 to 
 and among such of the legatees and in such proportion as 
 he might deem fit. Four years after her death the trustee 
 made an appointment of the property among certain of the 
 collateral legatees, who claimed their shares were not sub- 
 ject to taxation, upon the ground that the act contemplated 
 only the taxation of interests which accrued at the dece- 
 dent's death, and for the reason that the shares were not 
 determinable until the power of appointment had been exer- 
 cised. Surrogate Ransom, in holding the shares taxable, 
 said : "It is true that at the date of the death of Mrs. Stew- 
 art the appraiser could not determine either the value of the 
 estate which might eventually become taxable, or the per- 
 sons to whom it would pass; and he could not, therefore, 
 make any appraisal. It has been the practice of this court 
 to suspend all proceedings as to such contingent estates un- 
 til such contingency happens, with a view to the appoint- 
 ment of an appraiser at that time to make the appraisal. 148 
 The claim that at the death of this decedent there w T as no 
 estate that could be held subject to the tax, and that, there- 
 fore, there can be no tax assessed now, cannot be sustained. 
 It is a well-settled principle of the law that where parties 
 take under a power of appointment they take under the in- 
 strument creating the power, so that the parties named by 
 H. und'er the power given him must be regarded as the per- 
 sons selected by Mrs. Stewart. 149 It is true that their in- 
 terests did not accrue until the date when the power was 
 
 i*« 10 N. Y. Supp. 15 (Suit.). 
 
 1*7 as to powers, see post, § 60. 
 
 14 8 Citing In re Wallace (Suit.) 4 N. Y. Supp. 465; In re Clark 
 (Surr.) 5 N. Y. Supp. 199. 
 
 149 See In re Stewart, 131 N. Y. 274, 30 N. E. 1S4, citing 4 Kent, 
 Comm. 33S; Jackson v. Davenport, 20 Johns. 537; 2 Sugd. Powers, 
 p. 22. 
 
 LAW 1NHER. — 20 (305)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 exercised, * * * at which date also the tax upon their 
 interests accrued." 150 
 
 In confirming this ruling the court of appeals said: 151 
 "The contention on the part of the appointees under the 
 power is that the scheme of the statute only contemplates 
 cases where the interests created are capable of valuation 
 at the death of the testator. This would exclude all future 
 contingent interests, in real or personal property, created 
 by will. Such an intention certainly was not in the mind 
 of the legislature, and we are asked to exclude this large 
 number of cases from the operation of the act upon a con- 
 struction which imports into the thirteenth section 152 the 
 limitation contained in section 2. The claim of the ap- 
 pointees under the power must be allowed if the statutes 
 provide no scheme for taxation of contingent and uncertain 
 interests, although such interests may be within the purview 
 of the first section. It is not enough for the legislature to 
 declare that such interests are taxable. If no mode is pro- 
 vided for assessing and collecting the tax, the law is im- 
 perfect, and cannot as to such interests be executed. But 
 we think that the thirteenth section does include cases like 
 the present, and that contingent interests given by a will, 
 which, after the death of the testator, are converted, by the 
 happening of the event upon which they are limited, into 
 actual vested estates, may then be appraised and taxed un- 
 der the provisions of section 13. It is true that section 4 
 seems to contemplate that all taxes are ascertainable at the 
 death of the decedent, since it declares that 'they shall be 
 due and payable' at that time, and provides for charging in- 
 terest thereon from 'the time the tax accrued.' We think 
 the implication from this section ought not to overbear the 
 
 iso See, also, Com. v. Freedley, supra; Com. v. Williams, 13 Pa. 
 St. 29. 
 i5i In re Stewart, 131 N. Y. 284, 30 N. E. 1S4. 
 152 Laws 1887, c. 713. 
 (30G)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 intention of the legislature, indicated in section 1, to subject 
 all interests derived under wills to taxation, except those 
 within the exception; nor prevent such a construction of 
 section 13 as will bring the present case within its purview." 
 
 (f) Estates Taxable under Retroactive Clause New York Act of 1892. 
 
 By the New York transfer tax act of 1892 153 it seems that 
 the tax is, in some instances, intended to be retroactive, the 
 statute providing that "such tax shall also be imposed when 
 any such person or corporation becomes beneficially entitled 
 in possession or expectancy, to any property or the income 
 thereof, by any such transfer, whether made before or after 
 the passage of the act." The provision includes both trans- 
 fers by will and by deed. 154 While this is an important pro- 
 vision, its meaning and scope with reference to the taxation 
 of estates, where the transfer, will, or deed was made be- 
 fore, and the death occurred after, the passage of the act, 
 has not yet been passed upon by the court of appeals. A 
 similar question, however, arose under the English succes- 
 sion duty act, also under the acts of congress, to which we 
 shall hereafter refer. 155 The general rule is that legislative 
 acts are always construed as prospective in operation, unless, 
 by their language, it appears that it was the intention tha+ 
 they should have a retroactive effect. 156 
 
 its 3 Chapter 399, § 1, subd. 3. 
 
 is* Talmadge v. Seaman. 85 Hnn. 242, 32 N. Y. Supp. 906, reversing 
 30 N. Y. Supp. 304. This case has been argued before the court of ap- 
 peals, and reversed as In re Seaman (Oct. 8, 1895; Ct. App.) 41 N. 
 E. 401. See In re Gomez, 12 N. Y. Law J. 1037; In re Brooks 
 (Surr.) 32 N. Y. Supp. 177; In re Tobias (Feb. 8, 1895) 12 N. Y. Law 
 J. 1164. 
 
 iB5 Post, note 170 et seq. 
 
 156 Sherrill v. Christ Church of Poughkeepsie (1890) 121 N. Y. 
 701, 25 N. E. 50, reversing 55 Hun, 472, 8 N. Y. Supp. 806; In re 
 Miller's Estate, 110 N. Y. 223, 18 N. E. 139; In re Cogswell, 4 Bern. 
 Sur. 248; Talmadge v. Seaman (March, 1895) 85 Hun, 242, 32 N. Y. 
 Supp. 906; Roman Catholic Church of the Transfiguration v. Niles 
 
 (307)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 In the construction of this portion of the act the proper 
 inquiry would seem to be as to when the beneficial interest 
 took effect. If it vested in possession upon a death before 
 the act passed, then clearly it should not be held liable to 
 taxation, 157 unless the act is retroactive. If such interest 
 vested after the passage of the law, it is liable, though cre- 
 ated by will or deed, and upon a death occurring before the 
 act was passed. 
 
 But the words "by any such transfer, whether made be- 
 fore or after the passage of the act," would seem to be plain- 
 ly retroactive, so far as transfers made before the passage 
 of the act are concerned, and it would seem to have been 
 the intention of the law to embrace and include every tax- 
 able interest liable at and prior to the passage of the act, in 
 order that no estates liable under the former acts should 
 escape taxation by the repeal of the laws in existence prior 
 to the act of 1892. 158 
 
 Under a somewhat similar statute 159 it was provided that 
 "any property heretofore devised or bequeathed to any per- 
 son who is a bishop, or to any religious corporation, shall be 
 exempted from and not be subject to the provisions of this 
 
 (1S95) 86 Hun, 221, 33 N. Y. Supp. 243. See question of retroaction 
 discussed and cases cited, chapter 2, § 24; chapter 8, § 69. 
 
 157 See In re Dreyfous (Surr.) 18 N. Y. Supp. 767; In re Wolfe, 
 66 Hun, 389, 21 N. Y. Supp. 515, 522; In re Seaman (Oct. 8, 1895; 
 Ct. App.) 41 N. E. 401. 
 
 158 See Laws 1892, c. 399, § 23, repealing Laws 1885, c. 483; Laws 
 1887, c. 713; Laws 1889, c. 307, 479; Laws 1S91, c. 215. This in- 
 tention is shown by section 24 of the act of 1892, containing a sav- 
 ing clause, thus: "The repeal of a law or any part of it specified in 
 the annexed schedule shall not affect or impair any act done, or 
 right accruing, accrued or acquired, or liability, penalty, forfeiture 
 or punishment incurred prior to May 1, 1S92, under or by virtue of 
 any law so repealed, but the same may be asserted, enforced, prose- 
 cuted or inflicted, as fully and to the same extent as if such law had 
 not been repealed," etc. In re Richardson, N. Y. Law J. Jan. 31, 1893. 
 
 i5o Laws N. Y. 1S92, c. 169. 
 (308)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 act." 160 The effect of this statute has been considered re- 
 cently, 161 and it was substantially held to be retroactive 
 upon the above language. "The language of the act is that 
 property which had theretofore been devised or bequeathed 
 should be exempt. The claim upon the part of the defend- 
 ant that this language was intended to apply only to those 
 cases where it had been impossible to assess the tax, because 
 no appraisement could be made, is not borne out by any- 
 thing contained in the statute. It applies to all sorts of 
 property, in possession or in expectancy, and makes no dis- 
 tinction, and it was the evident intention of the legislature 
 to release property which had been thus devised, from the 
 provisions of the inheritance tax act, whether such devise 
 had become operative prior to the passage of the act or sub- 
 sequent thereto." 162 
 
 It was held in the Talmadge Case * — the leading authority 
 thus far on this question — that where the transfer "becomes 
 beneficially entitled, in possession or expectancy," to any 
 property, "whether the transfer was made before or after 
 the passage of the act, a contingent remainder, which vests 
 after the passage of the act, though created by a will which 
 took effect before that time, was taxable at the time of vest- 
 ing." 163 In that case testator died in 187G, when his will 
 was admitted to probate. At the time of the making of 
 the will, and at the time of death, the life tenants were liv- 
 
 1(10 See Laws 1892, c. 399, § 2, where the same clause is re-en- 
 acted, the word "hereafter" being included. 
 
 i6i Roman Catholic Church of the Transfiguration v. Niles (1895) 
 86 Hun, 221, 33 N. Y. Supp. 243. 
 
 162 see, as to power of state to release taxes, People v. Commis- 
 sioners of Taxes, 142 N. Y. 34S, 37 N. E. 116. 
 
 * 32 N. Y. Supp. 906; recently reversed in Court of App. as In re 
 Seaman (Oct. 8, 1895) 41 N. E. 401, the court holding that the act 
 applies to grants or gifts causa mortis but does not embrace or 
 render taxable interests taken under the wills of testators dying be- 
 fore the passage of the act. 
 
 163 See note on "Vesting," IS Abb. N. C. 300. See supra, section 
 58, subd. 3a, and notes. 
 
 (309)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. t> 
 
 ing. The two life tenants died in 1893, after the passage 
 of the act above mentioned. The question was, "Did the 
 children of S. become beneficially entitled, in possession or 
 expectancy," to the remainders of the funds held in trust 
 for the life tenants, upon the termination of such life estate, 
 and thus subject their interests to the payment of a tax? 
 O'Brien, J., in an able and elaborate opinion in the supreme 
 court, said: "While, in a strictly legal sense, persons having 
 a vested or contingent, a feasible or indefeasible, a posses- 
 sory or expectant interest in property by will or deed, may 
 be said to be 'beneficially interested' (which has been regard- 
 ed as synonymous with 'beneficially entitled'), and thus an- 
 swer the description of persons who, becoming 'beneficially 
 entitled, in possession or expectancy,' to property would be 
 liable to taxation, we do not think this is the meaning that 
 is to be attached to the words as used in the act of 1892. 
 As we have endeavored to point out, the latest expression 
 of the court of appeals favors the view that for the purpose 
 of taxation one only becomes beneficially entitled to property 
 when the time arrives that he has the title, or is entitled to 
 possession, or when a contingent interest vests, or when a 
 defeasible estate becomes indefeasible. While there are 
 objections to, and possibly hardships in, such a construction, 
 by rendering subject to a tax an interest or property which 
 was free therefrom when created, it nevertheless presents 
 the most practicable rule to be applied in the construction 
 of acts relating to the taxing of inheritances." This being 
 so, one should not be liable until he succeeds to the prop- 
 erty, and the injury or injustice of a rule that would hold 
 one liable or responsible for a tax upon property in which 
 he might have a contingent interest, but which might never 
 vest, has in many cases been pointed out. 164 
 "We think, then, that, had the law of 1892 been in exist- 
 
 164 See In re Curtis, 142 N. Y. 219, 30 N. B. 887; In re Hoffman's 
 Estate, 143 N. Y. 334, 3S N. E. 311; In re Roosevelt's Estate, 143 
 N. Y 120, 38 N. E. 281. See In re Tobias, 12 N. Y. Law J. 1104. 
 (310)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 ence at the time of the making of the will or the death of 
 S., the interest of the children of G. ('remainder-men') would 
 not then have been taxable, because they did not, within the 
 meaning of the transfer-tax act, become beneficially entitled, 
 in possession or expectancy, to the remainders of the funds 
 held in trust during the lives of their aunt and father, re- 
 spectively, until the termination of such life estates. 
 
 "As the tax is a burden placed permanently on the suc- 
 cession, and not upon the estate, if the act of 1892 had been 
 in force when the testator died, the state could not have got 
 its tax, because there was no certainty as to which of the 
 children would eventually get the property, and the matter 
 would have had to be deferred until the termination of the 
 life estates. Here, before such termination, the law of 1892 
 was enacted; and as, by its provisions, the tax was to be 
 imposed upon any one who became beneficially entitled, in 
 possession or expectancy, to any property, whether the in- 
 strument under which such property was acquired was made 
 before or after the passage of the act, we fail to see any 
 valid reason why it should not apply in the present in- 
 stance. * * * 
 
 "By its language the act imposes a tax upon succession to 
 property transferred by will prior to its passage, though 
 the beneficial interest therein vests subsequent to its pas- 
 sage; and while this construction seems to give a retroactive 
 effect to the act, which in all cases should, if possible, be 
 avoided, its effect is retroactive only so far as the legal es- 
 tate is concerned, but not as to the beneficial interest, which, 
 in this case, did not spring into existence until after the 
 passage of the act, and thus the persons entitled to succeed 
 to the beneficial enjoyment of the property became liable 
 for the tax. Our conclusions, therefore, are that this act 
 imposes a tax upon successions to property transferred by 
 will before the passage of the act, whenever any beneficial 
 interest therein vests subsequent to its passage." 
 
 Where decedent died in 1859, giving his daughter a life 
 
 (311)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. G 
 
 interest in a trust fund, with power of appointment over 
 the principal of the fund by will, and the daughter died in 
 1893, appointing the fund, it was held liable to taxation un- 
 der the above provision as against the beneficiaries under 
 the power. 165 
 
 In another case the testatrix died in 1S19, when her will 
 was admitted to probate. She devised her residuary estate 
 to her executors in trust, to receive the income thereof and 
 pay the same to her daughter E. during the life of the latter, 
 and, upon her death, leaving lawful issue, then to convey 
 the said trust estate to such issue; and in case of the death 
 of E. without issue, leaving the testatrix's daughter M. sur- 
 viving, the trust was to continue during the life of M., the 
 income to be applied to her support, and after her decease 
 the trustees were to transfer and convey the said trust fund 
 to the children and lawful heirs of H., a deceased brother of 
 testatrix, to share and share alike per stirpes. Both daughters 
 died without leaving issue. E. died in March, 1885, and M. in 
 December, 1893. In following the case of Talmadge v. Sea- 
 man, f the surrogate said: "In the present case it could not 
 be determined who would become entitled to the eventual 
 estate, upon the decease of the surviving life beneficiary, till 
 that event happened; and, therefore, there was no vesting, 
 at the time when the will took effect, which would have au- 
 thorized the collection of the tax from these contingent dev- 
 isees at that time, had the act of 1892 been then in force. 
 No distinction in principle has been drawn by parties to this 
 proceeding between this case and Talmadge v. Seaman"; 
 and, upon authority of that case, the surrogate denied an 
 application, by collateral relatives of decedent, for an adju- 
 
 165 in re Brooks' Estate (Suit.) 32 N. Y. Supp. 176, citing Jackson 
 v. Davenport, 20 Johns. 551; In re Stewart, 131 N. Y. 274, 30 N. E. 
 184; Attorney General v. Upton, L. R. 1 Exch. 224; In re Tobias, 
 supra. 
 
 f 32 N. Y. Supp. 906. 
 (312)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 dication that the real estate passing to them under the will 
 was not subject to any transfer tax. 166 
 
 It has been also held that the liability, in the case of a 
 transfer after the passage of the act of 1892, is imposed, in 
 respect to the estate or interest which the party entitled 
 thereto acquires, immediately upon the creation and incep- 
 tion of his interest, and not in regard to the character it may 
 ultimately assume. If the interest or estate so acquired 
 entitled its possessor to the immediate possession thereof, 
 the liability to the tax, and the obligation to pay it, at once 
 attached. Where the interest or estate so acquired was an 
 estate or interest in expectancy, the liability to the tax im- 
 mediately attached, although, if such estate or interest was 
 of a contingent character, this liability might never become 
 fixed or ripen into an actual obligation. The event upon 
 which the vesting of an absolute title or the acquisition of 
 the possession depended might never happen, and, in conse- 
 quence, the beneficiary might never get anything. The event 
 might, however, so turn out that what had been a contingent 
 had become a vested estate, with the right of possession 
 postponed. In such case the tax would accrue and be pay- 
 able upon the happening of the event. 167 Neither this cir- 
 cumstance nor the fact that the cases cited decide that no 
 tax can be imposed or levied, in respect to certain contingent 
 interests, until they have actually come into possession, is 
 opposed to the views above expressed as to the taxability of 
 expectant interests and estates. The tax is imposed by the 
 act with respect to these estates immediately upon their 
 creation; but where the interests are uncertain and con- 
 tingent the tax is postponed until the happening of the 
 event. These are the same interests that are in like man- 
 
 166 in re Gomez, 12 N. Y. Law J. 1637. 
 
 i«7 Laws 1892, c. 399, §§ 3-11; In re Curtis, 142 N. Y. 120, 36 N. E. 
 837; In re Hoffman's Estate, 143 N. Y. 327, 38 N. E. 311; In re 
 Roosevelt's Estate, 143 N. Y. 120, 38 N. E. 281. 
 
 (313)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 ner made subject to the tax where they have been acquired 
 by the beneficiaries, subsequently to the passage of the act, 
 by a transfer previously made. It is with reference to the 
 character of the interest or estate at the time of its origin 
 or creation, and not what eventually may turn out to be its 
 character, that the tax is imposed, in the case of a transfer 
 before, as in the case of a transfer after, the passage of the 
 act; and in both cases such interest or estate must have had 
 its origin and inception subsequently to the passage of the 
 act. Expectant estates, whether vested or contingent, ex- 
 isting at the time of the passage of the act, although they 
 have afterwards become vested in interest or possession, 
 are, therefore, not subject to the tax by the provision in 
 question. 168 
 
 These views, and those expressed in other cases, 169 seem 
 to conflict in some particulars with the rule settled in the 
 Talmadge Case in the construction of this statute, and also 
 with the construction of a somewhat similar provision con- 
 tained in the English succession duty act of 1353. 170 
 
 This section has been held to be sufficiently comprehen- 
 sive to include any benefit derived by any person, whether 
 
 168 in re Tobias, 12 N. Y. Law J. 1164, per Fitzgerald, S. 
 
 169 In re Forsythe (1S94; Suit.) 32 N. Y. Supp. 175; In re Tobias, 
 supra. 
 
 i7o ig & 17 Vict. c. 51, § 2: "Every past or future disposition of 
 property, by reason whereof any person has or shall become bene- 
 ficially entitled to any property, or the income thereof, upon the 
 death of any person dying after the time appointed for the com- 
 mencement of this act, either immediately or after any interval, 
 either certainly or contingently, and either originally or by way of 
 substitutive limitation, and every devolution by law of any bene- 
 ficial interest in property, or the income thereof, upon the death 
 of any person dying after the time appointed for the commencement 
 of this act, to any other person, in possession or expectancy, shall 
 be deemed to have conferred or to confer on the person entitled by 
 reason of any such disposition or devolution a 'succession'; and the 
 term 'successor' shall denote the person entitled, and the term 'pred- 
 (314)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 taking his title from a testator who died before or after the 
 act, provided he succeeds in consequence of a death taking 
 place subsequently. 171 
 
 Under this act a question was raised as to whether a suc- 
 cession was created and duty attached on estates in which a 
 person had a vested interest subject to the life interest of 
 another who died after the act, and several decisions have 
 been made, the most important of which is Wilcox v. 
 Smith, 172 in which the testator, who died in 1827, left real 
 estate to his son for life, who died in July, 1853, on whose 
 death the estate passed to his son, the testator's grandson, 
 who was held to be liable to succession duty. 173 
 
 In another case the testator died in the year 1S03, be- 
 queathing a certain sum of money, in which he gave a life 
 interest to his daughter, and on her death the capital to her 
 children, who, therefore, took a vested interest at testator's 
 death. She died in June, 1854, and it was held that a suc- 
 cession was created within the meaning of the act, and that 
 the children were liable to duty. 174 
 
 Under the same act it has been held that the appointee, 
 under a general power of appointment which has taken ef- 
 fect on a death happening since the commencement of the 
 act, takes a succession from the donee of the power, and is 
 liable to duty. 175 So, under the federal succession tax act, 
 a tax was imposed on the disposition of real estate, past or 
 future, by deed, will or the laws of descent, whereby any 
 
 ecessor' shall denote the settlor, disponer, testator, obligor, ancestor, 
 or other person from whom the interest of the successor is or shall 
 be derived." See chapter 1, § 4. 
 i7i Layton, Leg. Duty (9th Ed.) 122. 
 
 172 26 Law J. Ch. 596. 
 
 173 See, also, Attorney General v. Lord Middleton, 27 Law J. Exch. 
 229; Attorney General v. Fitzjohn, 2 Hurl. & N. 465; Ring v. Jar- 
 man, L. R. 14 Eq. 357; Attorney General v. Gell, 3 Hurl. & C. 615. 
 
 174 Attorney General v. Fitzjohn, supra. 
 
 175 Attorney General v. Upton, L. R. 1 Exch. 224. 
 
 (315)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 person became beneficially entitled, in possession or ex- 
 pectancy, to real estate, or the income thereof, after June 30, 
 1804. It was held that, where the property was devised 
 before the passage of the act to one for life, remainder to 
 another, and the tenant for life died after the act went into 
 effect, the tax accrued on the interest of the remainder-man 
 at that time, for the reason that the succession or devolution 
 took place on the death of the life tenant* 
 
 (d) Under Pennsylvania Statutes. 
 
 The recent statute of this state 176 embodies what seems 
 to be a fair and just enactment regulating the imposition 
 of the tax upon property passing to life tenants and remain- 
 der-men, and in respect to these estates the provisions of the 
 statute are simple but comprehensive. The act applies to 
 all estates made or intended to take effect in possession or 
 enjoyment after the death of a decedent; 177 and where the 
 taxable estate is devised to take effect in possession, or to 
 come into actual enjoyment after the expiration of one or 
 more life estates or a period of years, the tax shall not be 
 payable or interest run thereon until the person liable shall 
 come into actual possession of such estate by the termina- 
 tion of the estates for life or years. The tax is assessed at 
 the time the right of possession accrues, provided that the 
 owner shall have the right to pay the tax at any time prior 
 to his coming into possession, and in such cases the tax shall 
 
 * See supra, § 58, subd. b; Wright v. Blakeslee, 101 U. S. 174; 
 Clapp v. Mason, 94 U. S. 589, 23 Int. Rev. Rec. 144; Mason v. 
 Sargent, 104 U. S. 689; Id., 23 Int. Rev. Rec. 155, Fed. Cas. No. 
 9,253; Blake v. McCartney, 4 Cliff. 101, 10 Int. Rev. Rec. 13, Fed. 
 Cas. No. 1,498. 
 
 17 6 Appendix, III., Laws 1.887, p. 79, § 1. For Acts 1849, 1850, and 
 1855, see chapter 5, § 54, subd. c, p. 130, note, criticised in Kintzing 
 v. Hutchinson, 34 Leg. Int. 365, Fed. Cas. No. 7,834. For statutes of 
 Maryland and Connecticut, see Appendix, VII., VIII. 
 
 17 7 Laws 1887, p. 79, § 3. 
 (316)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 be assessed on the value of the estate at the time of the 
 payment of the tax, after deducting the value of the life 
 estate or estate for years. 
 
 Before considering the subject of remainders, it may be 
 well to state here that the liability to the tax under the 
 statute is to be determined, not by the amount of the legacy, 
 but by the amount of the whole estate. The exemption 
 clause of the statute providing that "no estate which may 
 be valued at a less sum than $250 shall be subject to the 
 duty or tax" 178 refers to the whole estate, and not to lega- 
 cies, devises, or distributive shares carved therefrom. 
 
 Hence, where testator bequeathed seven legacies of f 200 
 each to seven charities, and the legacies amounted in the 
 aggregate to an estate exceeding $250, each of the legacies 
 was held chargeable with the tax. 179 The same rule is now 
 applied under the New York act of 1892. 180 
 
 The statute requires the owner of any personal estate lia- 
 ble to the tax to file a bond for its payment and in case of 
 failure so to do makes the tax immediately payable and col- 
 lectible. 181 
 
 The liability of remainder-men under the statutes of 
 
 its Act May 6, 1887, Appendix, III. 
 
 179 in re Howell's Estate (1S92) 147 Pa. St. 164, 23 Atl. 403; In re 
 Mister's Estate (1891) 10 Pa. Co. Ct. R. 409, overruling Com. v. Kerch- 
 ner, 6 Pa. Law Rev. 308; In re Evans' Estate (1891) 8 Pa. Law. Rev. 
 321. See elaborate notes on this subject by S. H. Thomas, Esq., 10 
 Pa. Co. Ct. R. 409, and by C. B. Penrose, Esq., 49 Leg. Int. 26. 
 
 iso i n re Hoffman's Estate, 143 N. Y. 334, 38 N. E. 311; In re Hall 
 (Sup.) 34 N. Y. Supp. 616; chapter 3, § 41. 
 
 isi As to the extent to which this statute repeals or modifies the 
 former law of Pennsylvania, it has been held that the act does not 
 make any other or different estates liable, and that it is a codification 
 of the prior law and decisions. See In re Del Busto's Estate, 23 
 Wkly. Notes Cas. Ill, where all the statutes are carefully collated 
 and explained by Penrose, J. ; In re Cooper's Estate (Appeal of Com- 
 monwealth) 127 Pa. St. 435, 17 Atl. 1094, affirming Cooper v. Com., 
 5 Pa. Co. Ct. R. 271; In re Bittinger's Estate (Appeal of Common- 
 
 (317)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 Pennsylvania, which have already been, to some extent, nec- 
 essarily considered in the previous chapter on appraisement, 
 may be stated as follows: 182 
 
 (1) Under the earl}- statutes in force prior to 1850 the tax 
 and interest thereon accrued and became payable immedi- 
 ately upon the decease of the person whose estate, passing 
 to collateral heirs or strangers, was subject thereto, whether 
 the estate passed in actual enjoyment directly, or remotely 
 upon the termination of an intervening life estate or term of 
 years, subject, however, to a deduction of the value of the 
 outstanding life or other estate. 183 
 
 wealth) 129 Pa. St. 338, 18 Atl. 132. As to constitutionality of act 
 of 1887, see chapter 2, §§ 15, 29, and cases supra. 
 
 182 For acts of 1849, 1850, and 1855 see chapter 5, § 54, subd. c, note 
 149, and 1 Purd. Dig. 215, 216. The act of April 7, 1826 (section 1), 
 provided that all estates, real, personal, and mixed, of every kind 
 whatever, passing from any person who may die seised or possessed 
 of such estate, being within this commonwealth, either by will or un- 
 der intestate laws thereof, or any part of such estate or estates, or in- 
 terest therein, transferred by deed, grant, bargain, or sale made or in- 
 tended to take effect in possession or enjoyment after the death of 
 the grantor or bargainor to any person or persons or body politic or 
 corporate, in trust or otherwise, for the use of father, mother, hus- 
 band, wife, children, and lineal descendants born in lawful wedlock, 
 shall be and they are hereby made subject to a tax or duty of $2.50 of 
 the clear value of such estate or estates, and at and after the same 
 rate for any less amount, to be paid to the use of the commonwealth; 
 and all executors and administrators and their sureties shall only be 
 discharged from their liability for the amount of any and all such 
 duties on estates, the settlement of which they may be charged with 
 by having paid the same over for the use aforesaid, as herein di- 
 rected. 
 
 183 Com. v. Smith, 20 Pa. St. 100, 105; Mellon's Appeal, 114 Pa. St. 
 564, 570, 8 Atl. 183; In re Cooper's Estate, 127 Pa. St. 435, 17 Atl. 
 1094; Fagely's Estate, 128 Pa. St. 603, 18 Atl. 386; Willing's Estate, 
 33 Leg. Int. 54, 2 Wkly. Notes Cas. 308; Del Busto's Estate, 23 Wkly. 
 Notes Cas. Ill; James' Appeal, 2 Del. Co. Rep. 164; Cullen's Estate, 
 26 Wkly. Notes Cas. 216. 
 
 (318)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 The same rule prevailed in North Carolina. 184 The words 
 "all estates of every kind whatsoever" were held sufficiently 
 comprehensive to include a remainder. 185 
 
 Under this rule, where the testator devised his land to his 
 sister for life, the proceeds at her death to be divided be- 
 tween brothers and sisters then living, and not to the heirs 
 of such as were dead, it was held that under the act of 1820 
 the whole estate was taxable immediately after the tes- 
 tator's death, and was then collectible from his executors. 186 
 
 (2) But, as we have already seen, 187 this condition of the 
 law, by which a tax was imposed upon estates in remainder 
 immediately upon the decedent's death, and where the es- 
 tate might never vest in possession, and its value to the 
 remainder-man was often problematical, was felt to be un- 
 just. 188 
 
 (3) To remedy this, two statutes were passed, one in 1850 
 and the other in 1855, 189 by the former of which, in case of 
 a remainder or reversionary interest after an estate for life 
 or years, the person entitled in remainder might elect to 
 await the actual coming into possession of his estate before 
 paying the tax; and in such case he was to give security to 
 the register for its payment. 190 By act of 1855 it was 
 provided that the penalty for nonpayment of the tax should 
 not be charged in any case against the party entitled in re- 
 mainder or reversion until his interest should come into 
 actual possession and enjoyment, and "that, if such legatee 
 
 184 Attorney General v. Pierce (1861) 6 Jones, Eq. 241. 
 iss Com. v. Smith, 20 Pa. St. 103; James' Appeal, 2 Del. Co. Rep. 
 164. 
 
 186 Com. v. Eekert, supra. 
 
 187 Chapter 5, § 54, subds. c, 2. 
 
 188 gee Mellon's Appeal, 114 Pa. St. 570, 571, 8 Atl. 183; Cooper's 
 Estate, 127 Pa. St. 435, 17 Atl. 1094. 
 
 189 Chapter 5, § 54, subds. c, 2. 
 i»o id. 
 
 (319)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. t> 
 
 or devisee shall elect to pay such tax in anticipation of the 
 same coming into actual possession and enjoyment, the 
 same shall be received at the then valuation of the legacy 
 or devise, deducting the value of the life estate or term of 
 years." 
 
 While these statutes empowered the remainder-man or his 
 trustee, in their discretion, to postpone payment of the tax 
 upon complying with certain conditions 191 as regards the 
 filing of a bond and an inventory within a year after dece- 
 dent's death, the right to an appraisement of such estates 
 by the register immediately upon the death of the decedent 
 was not taken away 192 until the act of 1887 came into 
 effect, by which it is now plainly provided that the tax shall 
 be assessed at the time the right of possession accrues. In 
 this respect the ruling in Mellon's Appeal 193 seems to have 
 been modified by express legislative sanction, and the con- 
 struction previously placed upon the act of 1855 by several 
 cases in the lower courts 194 was adopted. Hence, not only 
 the payment of the tax upon estates in remainder, but the 
 appraisement thereof, are now postponed until the estate 
 vests in actual possession or enjoyment. 195 Both proceed- 
 ings are, therefore, made to take place contemporaneously. 
 Where, however, the life estate is not ended, the tax on 
 remainder is not demandable, but an assessment should be 
 made. 196 
 
 Two instances, at least, however, exist in which the com- 
 monwealth would seem to have the right to an immediate 
 
 i9i See Wharton's Estate, 10 W. N. C. 105; Willing's Estate, supra; 
 Cooper's Estate, supra. 
 
 192 Mellon's Appeal, 114 Pa. St. 465, 8 Atl. 183; James' Appeal, 2 
 Del. Co. Rep. 164. Contra, McGeary's Estate, 14 Pa. Law J. (N. S.) 
 174; Wharton's Estate, supra. Chapter 5, § 54, subd. c. 
 
 193 H4 Pa. St. 570, 571, 8 Atl. 183. 
 
 194 McGeary's Estate, supra. 
 
 195 See Cooper's Estate, 127 Pa. St. 435, 17 Atl. 1094. 
 
 196 Budd's Estate (1SU2J 12 Pa. Co. Ct. R. 476. 
 (320)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 payment of the tax: First, where the remainder-man de- 
 sires to anticipate payment, or to elect to pay the tax be- 
 fore his estate vests in possession or enjoyment, in which 
 event the statute provides that the tax shall be imposed 
 upon the value of his remainder at the time of payment, 
 deducting the value of the preceding estate; 197 second, 
 where the remainder-man omits or neglects, within a year 
 from the testator's death, to file the bond and inventory 
 required by the statute in order to postpone payment of the 
 tax. Such neglect showing a failure on his part to avail 
 himself of the statutory right of election, under the terms 
 of the law the tax becomes immediately payable and col- 
 lectible. 198 We have already discussed the method or rule 
 of appraisement under this provision, 199 but no authority 
 seems to exist construing this clause of the statute. 
 
 The most recent construction of the law with reference 
 to the liability of estates in remainder and the rights of 
 remainder-men was made by the supreme court in Re 
 Cooper's Estate, 200 where in construing the early statutes 
 in connection with the act of 18S7, the court said: 
 
 "Thus, the payment of the tax by remainder-men, which 
 before this act 201 was payable at the death of decedent, 
 may now, at their election, be postponed until they come 
 into the actual possession, upon proper security for its pay- 
 ment. * * * In estates liable to the collateral tax, the 
 commonwealth is entitled to a tax on the entire estate. 
 That when the tenant for life or years — being parent or 
 
 197 Cooper's Estate, supra; page 138, c. 5, § 54. 
 las Appendix, III. § 3. 
 
 199 Page 13G, c. 5, § 54, subd. c. 
 
 200 127 Pa. St. 435, 439, 17 Atl. 1094 (1SS9). See, also, Appeal of 
 Mellon (1SSG) 114 Pa. St. 572, S Atl. 183; In re Willing's Estate, 2 
 Wkly. Notes Cas. 307; In re McGeary's Estate, 14 Pa. Law J. (N. S.) 
 174. 
 
 201 p. L. 1S50, p. 170. 
 
 LAW INHER. — 21 (321)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 lineal descendant, etc. — is exempt from liability, the whole 
 tax on the entire estate must be paid by tenant in re- 
 mainder. That in such cases the time of payment is post- 
 poned until the estate comes into actual possession of the 
 tenant liable. That nevertheless, if such tenant elect, in 
 anticipation, to pay at the death of the decedent, the tax 
 is assessable on the then valuation of the entire estate, less 
 the value of the estate for life or years, — that is, when the 
 tenant of the intermediary estate is not liable, — the tenant 
 in remainder has the election either to pay the tax on the 
 entire estate, with interest, when he comes into actual pos- 
 session, or to pay at the death of the decedent on the 
 then valuation of the estate in remainder; and, in consid- 
 eration of such anticipated payment, her right to the tax 
 on the intermediate estate is waived by the commonwealth." 
 It was further held that no substantial change in these 
 respects was made by the act of 1887, and that if, under that 
 act, tenant in remainder desires to pay the tax at any time 
 prior to his coming into possession, it is to be assessed on 
 the value of the estate at the time of payment of the tax, 
 after deducting the value of the preceding estate; and that 
 the value of the estate of the remainder-man depends upon 
 the clear value of the estate that passes from the person 
 who died seised, and the probable duration of the preceding 
 life estate. 202 So that, under the recent statute and rul- 
 ings, the only responsibility which tenant in remainder now 
 assumes upon the death of his testator is, if he would post- 
 pone payment, either to give the bond and accompanying 
 inventory for the payment of the tax when the estate vests 
 in possession, or pay the tax immediately in anticipation. 
 The year given to the remainder-man in which to do either 
 one of these acts affords him ample time to exercise his 
 judgment with respect to the condition of the estate. 
 
 202 in re Cooper's Estate (Appeal of Commonwealth), supra. 
 (322)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 Under the acts existing prior to 1887, it was held that 
 for certain purposes — such as the statute of limitations, 
 interest, and penalty — the tax accrued upon the devolution 
 of the estate that was subject thereto, to wit, at decedent's 
 death. 203 And this rule was applied both to estates in 
 possession or expectancy. Under the act of 1887, it would 
 seem, so far as estates in remainder are concerned, the tax 
 only accrues when the remainder-man becomes vested with 
 the possession of his estate, and no interest charges now at- 
 tach until the estate so vests in possession by the termina- 
 tion of the preceding estate. The intent of the statute is 
 that the tax accrues at decedent's death, unless enjoyment 
 is postponed by a life estate in another, and, except in the 
 case of such postponed adjournment, the value at the time 
 of testator's death is the basis for calculating the amount 
 of the tax. 204 
 
 As has already been shown, 205 it would seem to be to the 
 interest of the remainder-man, as a general rule, to antici- 
 pate payment of the tax upon his estate before it comes into 
 possession, because, as the value of the outstanding life 
 estate is to be deducted, the residue, being the interest of 
 the remainder-man, is alone taxable. If, however, the re - 
 mainder-man waits until his estate vests in possession, he 
 must pay tax upon the full value of the estate coming to 
 him upon the death of the life tenant. Thus, a testator 
 leaves an estate which we will assume is worth |5,000. 
 Supposing the life tenant's interest to be $2,000, and the 
 remainder-man's interest at the testator's death $3,000. By 
 paying the tax immediately, the remainder-man pays upon 
 the latter amount, but by waiting until the death of the 
 life tenant the remainder-man pays upon the net value of 
 
 203 Appeal of Mellon, 114 Pa. St. 572, S Atl. 183. But see Iu re 
 Cooper's Estate (Appeal of Commonwealth), supra. 
 
 204 in re Lines' Estate (1S93) 153 Pa. St. 3TS, 20 Atl. 72S. 
 zoo Chapter 5, § 54, note. 
 
 (323)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Cll. 6 
 
 the whole estate coining to him at the time the right of 
 possession accrues, i. e. at the death of the life tenant, and 
 thus upon the full amount of f 5,000; assuming, of course, 
 that the value of the interest in remainder has not at that 
 time considerably depreciated. 
 
 The tax is imposed, not upon the identical property pass- 
 ing to the remainderman, but upon its net value; that is, 
 upon the sum representing the interest of his estate, after 
 deducting all lawful debts and obligations against the 
 estate of the testator. 206 
 
 The tax is imposed only on what remains for distribution 
 after all the expense of administration debts and rightful 
 claims of third parties, domestic as well as foreign, have 
 been paid or provided for. It is only the net balance that 
 is liable. 207 This does not include the expense of counsel 
 in litigation among persons claiming as distributees of the 
 decedent's estate. 208 The income derived from the estate 
 of a decedent during the first year after his death is not sub- 
 ject to tax, although by direction of decedent's will, added 
 to the principal, and both principal and income applied in- 
 discriminately to the payment of expenses, etc. The tax 
 fastens upon so much of the estate as passes to collaterals 
 as it stands at the death of the testator. It comes out of 
 the corpus of the gift upon its descent or transmission, upon 
 the death of the former owner, to the beneficiary. Income 
 accruing subsequently comes not from the testator or in- 
 testate, but from the property held by or for the use of the 
 legatee or other beneficiary. 209 
 
 206 in re Cooper's Estate (Appeal of Commonwealth) 127 Pa. St. 
 440, 17 Atl. 1094; In re Fagely's Estate (Appeal of Commonwealth) 
 128 Pa. St. 613, 18 Atl. 3S6; In re Lines' Estate, 155 Pa. St. 379, 2G 
 Atl. 72S; and cases cited chapter 5, § 52; c. 4, § 49. 
 
 207 in re Lines' Estate (1893) 155 Pa. St. 37S, 26 Atl. 72S; In re 
 Coleman's Estate (1S93) 159 Pa. St. 231, 28 Atl. 137. 
 
 208 in re Lines' Estate (1893) 155 Pa. St. 37S, 26 Atl. 72S. 
 
 209 in re Williamson's Estate (1893) 153 Pa. St. 508, 26 Atl. 246, re- 
 (324)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 58 
 
 When the act of 1887 declares that the tax shall be assessed 
 upon the value of the estate at the time the right of posses- 
 sion accrues to the owner, or that the tax shall be assessed 
 on the value of the estate at the time of the payment of the 
 tax, it refers to the then quantum of the estate after deduct- 
 ing the life estate, and not to the value of the land, which 
 may be a very different estate from that which passed from 
 tbe decedent. 210 
 
 Where payment of the tax is made after the possession 
 accrues, the remainder is to be valued as of the date of pos- 
 session. 211 And this is so whether the remainder arises by 
 formal bequest or by operation of law. 212 
 
 Where decedent devised his estate to his niece for life, 
 with remainder in fee to her son, and the latter died before 
 his mother, leaving as heirs his sisters, held, upon the death 
 of his mother, that, as the son never had the actual enjoy- 
 ment or possession of the estate, it was not taxable as pass- 
 ing from him to his sisters, but that the devise to him from 
 the original decedent was taxable at the rate imposed by 
 statute at the time of the latter's death, and not at the rate 
 imposed by the law in existence when the mother died. 213 
 
 (4) Where the life tenant has power to dispose of the 
 corpus of the estate during life, and not simply the use of 
 the income, and there is a bequest to collateral heirs of any 
 surplus that shall or may remain after such life tenant's 
 death, no tax can be imposed upon the residue of the estate 
 until the termination of the life estate, as it is impossible 
 
 versing 49 Leg. Int. 106, 30 Wkly. Notes Cas. 134. 11 Pa. Co. Ct. R. 235, 
 and 1 Pa. Dist. R. 159. 
 
 210 in re Cooper's Estate (Appeal of Commonwealth) 127 Pa. St. 
 435, 17 Atl. 1094. 
 
 2ii Appeal of Commonwealth, supra; Appeal of Mellon, supra. 
 
 212 in re McGeary's Estate, 14 Pa. Law J. (X. S.) 174. 
 
 213 James' Appeal, 2 Del. Co. Rep. 164. See In re Cullen's Estate, 
 2G Wkly. Notes Cas. 216. 
 
 (325)
 
 § 58 VESTED AND CONTINGENT ESTATES. [Cll. 6 
 
 to ascertain the value until that time. 214 The same result 
 has been reached under the New York statute. 215 
 
 Where, however, the will gives the life tenant — a widow — 
 an estate upon the express condition that she pay certain 
 legacies to collateral relatives, the gifts to the legatees are 
 direct and vested, and subject to the tax. 210 
 
 And where 217 the testator bequeathed his residuary es- 
 tate to his wife, in trust, to be given by her, or as she might 
 direct, by will or otherwise, for charitable purposes, with the 
 proviso that in case of her death before she should have 
 used the estate for her support the surplus should be paid 
 by her executors to specific charities, it was held that the 
 wife did not take the whole residuary estate; that the 
 amount necessary for her support was capable of ascertain- 
 ment; and that a valid trust was created in the residue, 
 which, after deducting the amount of such support, was lia- 
 ble to taxation. "There can be no doubt," said the court, 
 "but that, if it had been required, the whole estate might 
 have been taken by Mrs. B. for her support; but that is a 
 fact which, under the authorities, may be ascertained by 
 competent evidence." 218 
 
 (e) Massachusetts Statute. 
 
 Under this act, 219 where property is bequeathed to a direct 
 heir for life or for a term of years, and the remainder to a 
 
 214 in re Niernan's Estate, 131 Pa. St. 346, 18 Atl. 900. See Mellon's 
 Appeal, supra. 
 
 sis in re Cager's Will, 111 N. Y. 343, 18 N. E. 8G6. See ^ases dis- 
 cussed in chapter 5, § 54, subds. d, b, and supra, § 58, subd. c. 
 
 216 in re Niernan's Estate, supra. 
 
 217 in re Brewer's Estate, 15 P. L. J. (N. S.) 433; 1G Pa. Law J. 
 (N. S.) 114. 
 
 2i8 Citing In re Redroth's Will, 27 Beav. 583; Ensinau v. Directors 
 of Poor, 47 Pa. St. 509; Reek's Appeal, 78 Pa. St. 432; Fisk v. Attor- 
 ney General, L. R. 4 Eq. 521; Witman v. Lex, 17 Serg. & R. 93. 
 
 2i9 Laws Mass. 1891, c. 425, § 2. 
 (326)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 59 
 
 collateral heir, or to a stranger to the blood, the value of 
 the prior estate shall be appraised, and deducted from the 
 appraised value of the property. The remainder shall be 
 subject to a specified tax, and the tax shall be computed 
 and deducted from the principal sum, and paid over to the 
 treasurer of the commonwealth 220 "at the expiration of two 
 years from the date'' of the executor's bond, or when the 
 legacy is paid, if paid within two years; and the amount 
 of the loss of the income of the tenant for life or years 
 caused by the diminution of the principal of the fund is not 
 to be made up to him out of the principal or out of the gen- 
 eral funds of the estate. 221 
 
 § 59. Fraudulent Transfers, Trusts, and Gifts 
 Inter Vivos and Causa Mortis. 
 
 (a) Statutory Provisions. 
 
 The legacy and succession tax laws of England 222 and the 
 collateral and direct inheritance tax laws of most of the 
 states are, for obvious reasons, framed so as to include not 
 only property passing by will or intestacy, but generally all 
 property which shall be transferred by deed, grant, sale, or 
 gift made or intended to take effect in possession or enjoy- 
 ment at or after the death of the grantor, transferror, or 
 bargainor, to any person other than those specially exempt- 
 ed. Such is the provision of the statute of New York of 
 1S87. 223 
 
 The statute of 1892 224 provides for a tax when the trans- 
 fer is of property made by a resident or by a nonresident, 
 when such nonresident's property is within the state, by 
 
 220 Under Laws, 1891, c. 425, § 4. 
 
 221 Miuot v. Winthrop (1S94) 162 Mass. 113, 3S N. E. 512. But see 
 In re Wharton's Estate, 10 Wkly. Notes Cas. 100. 
 
 222 16 & 17 Viet. c. 51, §§ 7, 8. 
 
 223 Appendix, I. a, § 1. 
 
 224 Appendix, I. e, c. 3D!), § 1, subd. 3. 
 
 (327)
 
 § 59 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 deed, grant, bargain, sale, or gift, made in contemplation of 
 the death of the grantor, vendor, or donor, or intended to 
 take effect, in possession or enjoyment, at or after such 
 death. Such tax shall also be imposed when any such per- 
 son or corporation becomes beneficially entitled, in posses- 
 sion or expectancy, to any property or income thereof by 
 any such transfer, whether made before or after the passage 
 of the act. 
 
 The statute 225 further provides that the words "estate'' 
 and "property" shall be taken to mean the property of the 
 testator, etc., and not that of the legatee or devisee, etc., and 
 shall include all property or interest therein, whether situ- 
 ated within or without the state, over which the state has 
 any jurisdiction for the purposes of taxation. It also pro- 
 vides that the word "transfer" shall be taken to include the 
 passing of property or any interest therein in possession or 
 enjoyment, present or future, by inheritance, descent, devise, 
 bequest, grant, deed, bargain, sale, or gift, in the manner pie- 
 scribed in the act. Similar enactments are contained in the 
 laws of other states. 226 In North Carolina it was also made 
 a misdemeanor to make any fraudulent or intentional dis- 
 position of property inter vivos for the purpose of evading 
 the tax, 227 a provision which does not seem to be contained 
 in any of the other statutes. While the law of New York 
 upon the subject of gifts and conveyances inter vivos and 
 causa mortis made or intended to take effect, in possession 
 or enjoyment, at or after death, has not been the subject of 
 judicial interpretation by the highest courts, the question 
 has been considered in many instances, in the lower courts; 
 and in Pennsylvania, from whose statutes the language of 
 the New York statutes has been substantially copied, 228 the 
 
 225 Appendix, I. e, § 22. 
 
 226 gee statutes, Appendix. 
 
 227 Rev. Code, 1855, c. 00, §§ 7, 8. 
 
 22 8 gee In re Johnson's Estate (Suit.) 10 N. Y. Supp. 0G3. 
 (328)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 59 
 
 meaning and effect of similar provisions have been frequent- 
 ly under consideration. The general rule established by 
 these authorities is that the tax is payable on all property 
 transferred by deed, grant, etc., to collateral or lineal heirs 
 or strangers made or intended to take effect in possession 
 or enjoyment at, on, or after, the death of the grantor, or 
 transferror, the policy of the law being not to permit the 
 owner of an estate to evade or defeat the tax by any device 
 which secures to him for life the income, profit, or enjoy- 
 ment of an estate where, after death, the corpus of the es- 
 tate or ony part thereof shall inure to the benefit of persons 
 who are not exempted. Hence, it would seem that payment 
 of the tax can only be defeated or avoided by such a bona 
 fide conveyance as parts absolutely with the possession, ti- 
 tle, and enjoyment in the grantor's lifetime. These general 
 principles and others have been enunciated and are sus- 
 tained by the authorities under this clause of the statute. 229 
 So the acts of congress required that a transfer, in order 
 to avoid the tax, should be made "upon valuable and ade- 
 quate consideration,'' 230 which phrase was construed to 
 mean either money paid or some present legal interest or 
 estate parted with or charged, or services rendered to the 
 value of the property received, 231 and under the English law 
 
 229 Reishv. Com., 42 Leg. Int. 102. affirmed 10G Pa. St. 521; Seibert's. 
 Appeal, 110 Pa. St. 329, 1 Atl. 340; Du Bois' Appeal. 121 Pa. St. 308, 15 
 Atl. 041; Davenport's Appeal, 3 Pa. Sup. Ct. Dig. 230; Trutt v. Crot- 
 zer, 13 Ta. St. 451; Wright's Appeal, 38 Pa. St. 507; In re Thomson's 
 Estate, 5 Wkly. Notes Cas. 19; Waugh's Appeal, 78 Pa. St. 430; In 
 re Conwell's Estate, 45 Leg. Int. 200; In re Riddle's Estate, Id. 394; 
 Com. v. Kuhn, 2 Pa. Co. Ct. R. 24S; U. S. v. Banks. 17 Fed. 322; U. S. 
 v. Hart, 4 Fed. 293. See. also. In re Lines' Estate (1893) 155 Pa. St. 
 378, 20 Atl. 728. See In re Brewer's Estate, 15 Pittsb. Leg. J. 433; 
 10 Pittsb. Leg. J. 114: Attorney General v. Montiriore, 59 Law T. 
 534; In re Higgins, 45 Law T. (N. S.) 199; In re Micklewait, 11 Exch. 
 452. See, also. In re Johnson's Estate (Suit.) 19 N. Y. Supp. 903. 
 
 230 tj. S. v. Banks, supra. 
 23i TJ. S. v. Hart, supra. 
 
 (329)
 
 § 59 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 a conveyance or assignment by way of bona fide sale did 
 not create a succession upon which the duty could be im- 
 posed. 232 But, under the recent English "Estate Duty Act" 
 of 1894, the following classes of property are liable to be in- 
 cluded in an account for the purpose of estate duty: (1) 
 Donatio mortis causa; (2) gifts made by a disposition inter 
 vivos within 12 months before death; (3) gifts, made at any 
 time, where the donor retains any interest; (1) property 
 which the deceased caused to be vested in himself and some 
 other person, so that on his death it passes to the survivor; 
 (5) property settled by the deceased otherwise than by will, 
 in which he retains a life interest, or has a power of revoca- 
 tion.* 
 
 The fact, however, that the transfer or conveyance was ac- 
 tually made by the owner to defeat the tax will not invali- 
 date the transfer, but the fund will be liable to taxation in 
 the hands of the cestui que trust, 233 and it is not essential 
 under the language of these acts that such gifts or convey- 
 ances should be intentional or fraudulent, the language gen- 
 erally being "made or intended." The fact, therefore, that they 
 are made for the purpose of avoiding the tax, or that such 
 purpose is accomplished by the transfer, would seem to be 
 sufficient in law. 234 
 
 Thus it would seem that the language of these statutes 
 is broad enough to include, and is intended effectually to 
 cover, even the most intricate transfers of property the ob- 
 ject of which is to avoid payment of the tax, or is intended 
 so to do. It is payable, therefore, where the conveyance is 
 
 232 Fryer v. Morehouse, 3 Ch. Div. 675. As to what constitutes a 
 disposition of property within the English succession act, see Attorney 
 General v. Montifiore, supra; In re Micklewait, supra; In re Higgins, 
 supra. 
 
 * Finance Act 1894 (57 & 58 Vict. c. 30), § 2. See "Estate Duty 
 and Succession Duty," by J. E. C. Munro (London, 1894) p. 6. 
 
 233 Trutt v. Crotzer, 13 Pa. St. 451. 
 
 234 in re Conwell's Estate, 45 Leg. Int. 2G6. 
 (330)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 59 
 
 such as to clothe the grantee with the mere naked legal title, 
 liable to be defeated at any time by the grantor or in the 
 the event of the grantee's death before the grantor; 23j and 
 the rule was applied where the deed was not delivered until 
 after the death of the grantor; 236 and a deed is within the 
 statute which was made by one (who died intestate) to trus- 
 tees to convey and assign the property after the grantor's 
 death in accordance with his will, or, in case of intestacy, 
 to those who, had the deed not been made, would have been 
 entitled under the intestate laws to inherit. 237 
 
 So any assignment in trust reserving to the grantor the 
 income for life, and directing the corpus to be conveyed to 
 collateral heirs after the grantor's death, is within the stat- 
 ute; as, for instance, a transfer of shares by testatrix in 
 her lifetime to legatees, reserving to herself the dividends 
 and income for her support, 23 s or an assignment to trustees 
 to pay the assignor the income for life, and after his death 
 to pay certain sums to persons named in the deed, if they 
 survived him, with the right of revocation, which was not 
 exercised. 239 
 
 So a deed of trust directing that the devisees or trustee 
 shall hold such securities and property in trust for the uses 
 and purposes set forth in a will or deed executed previously, 
 whereby the entire estate was bequeathed to collateral rela- 
 tives, and charity will not relieve the estate from liability. 240 
 
 235 Appeal of Du Bois, 121 Pa. St. 308, 15 Atl. 041; In re Lines' 
 Estate (1893) 155 Pa. St. 378, 26 Atl. 728. 
 
 236 Davenport's Appeal (Pa. Sup.) 14 Atl. 346, 3 Pa. Sup. Ct. Dig. 
 236. 
 
 237 Com. v. Kuhn, 2 Pa. Co. Ct. R. 248. 
 
 238 in re Riddle's Estate, 45 Leg. Int. 394. Contra, In re Hen- 
 dricks (Suit.) 3 N. Y. Supp. 2S1 : U. S. v. Leverieh, 9 Fed. 5S6. 
 
 239 Wright's Appeal, 38 Pa. St. 507; In re Thomson's Estate, 5 
 W kly. Notes Cas. 19. 
 
 240 Seibert's Appeal, 110 Pa. St. 329, 1 Atl. 326; In re Lines' Es- 
 tate (1893) 155 Pa. St 37S, 26 Atl. 728. 
 
 (331)
 
 § 59 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 Where decedent executed a deed purporting to convey 
 his entire estate to a trustee to pay income to him, grantor, 
 for life, and upon his death to distribute the principal among 
 strangers and collaterals, the estate passing under such deed 
 is subject to the tax. 241 
 
 The right of the commonwealth to tax is not defeated by 
 a conveyance or transfer of title to the property during the 
 lifetime of the owner, nor by possession taken under such 
 conveyance, if the enjoyment of the property conveyed is 
 not intended to take effect until the death of the grantor. 
 
 Decedent, in his lifetime, executed a deed of trust convey- 
 ing to a trust company in New York certain bonds of a 
 Missouri corporation and stock of a New Jersey corporation. 
 The trustee was to collect the interest and dividends and 
 pay them over to decedent during his life, and upon his 
 death to certain beneficiaries named. The trust deed re- 
 served to the decedent the power "to alter, change, modify, 
 or revoke all disposition and direction as to transfer and 
 dispositions made and to be made of said property" after 
 his decease. Decedent was a citizen of Pennsylvania, dom- 
 iciled in that state, both at the time the deed was executed 
 and at his death. He made no change in the beneficiaries 
 mentioned in the deed. Some of the beneficiaries were citi- 
 zens of Pennsylvania and some of another state. None 
 were residents of New York at the date of the execution of 
 the deed, nor at the death of decedent. No debts were ow- 
 ing by decedent in New York; no ancillary administration 
 was taken there, and no succession tax had been paid in 
 that state. Held that the beneficiaries named in the deed 
 were liable for the tax. 242 Sterrett, C. J.: "In view of the 
 undisputed facts, it is strange that any question should have 
 been seriously raised, either as to the right of the common- 
 
 241 in re Maris' Estate (1893) 50 Leg. Int. 458. 14 Pa. Co. Ct. Rep. 
 171. and 3 Pa. Dist. R. 33. 
 
 242 in re Lines' Estate (1393) 155 Pa. St. 37S, 20 Atl. 728. 
 (332)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 59 
 
 wealth to the tax on the securities, or the liability of the 
 beneficiaries to pay their respective proportions thereof. 
 Mr. Lines was not only the beneficial owner of the securities 
 prior to and at the time of his decease, but under the re- 
 served power of modification, revocation, etc., he had abso- 
 lute control of the disposition to be made of the securities 
 upon his decease. At any time prior thereto he could have 
 modified or revoked the trust in favor of the beneficiaries 
 named in the deed. It is true, the legal title to the secu- 
 rities was in the trust company, but, aside from compensa- 
 tion for its services as custodian of the property, the com- 
 pany had no beneficial interest therein. In any proper 
 sense of the term, the securities were the personal property 
 of Mr. Lines. They were his to enjoy during his lifetime, 
 and his to dispose of in any manner he saw fit, at any time 
 prior to his decease. He chose to leave the trust in favor 
 of the beneficiaries unaltered and unrevoked, and, as he in- 
 tended, it took effect, in enjoyment, immediately after his 
 decease. Moreover, the securities were that kind of per- 
 sonal property the situs of which follows the owner.'' 243 
 The manifest purpose of our collateral inheritance tax is to 
 subject property limited by deed in the manner stated in 
 the statute to taxation, because it is still substantially the 
 property of the grantor, and does not actually pass, nor is 
 it intended to pass, to the beneficiaries until his death, and 
 hence it is essentially similar in that respect to a devolution 
 of property by testacy or intestacy upon the death of the 
 owner. 244 i 
 
 And where two sons, A. and B., took an estate in fee un- 
 der their father's will, and a release was made from A. to 
 B., releasing B. from all claims under his father's will on 
 
 243 Citing Orcutt's Appeal, 97 Pa. St. 179. 
 
 ii- Iieish v. Cum., 10<; Pa. St. 521; Appeal of Seibert, 110 
 Pa. St. 329, 1 Atl. 346; In re Du Bois' Appeal, 121 Pa. St. 3S6, 15 Atl. 
 041. 
 
 (333)
 
 § 59 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 condition that B. should convey all the lands to A.'s chil- 
 dren, they to take possession at A.'s death, and to give him 
 an obligation payable after his death, and A., having con- 
 summated the arrangement, died single, and without issue, 
 his share was held liable. 245 
 
 And a transfer by A., unmarried, and without lineal heirs, 
 of all his property in fee to B., his brother, the latter giving 
 A. a bond conditioned that A. should have the property to 
 enjoy during A.'s life, on A.'s death a few days after, was 
 held within the statute. 240 
 
 Again, where testator had bequeathed his estate to a re- 
 ligious corporation, and long prior to his death had ad- 
 vanced to the beneficiaries, on account of their legacy, large 
 sums, and took from them their bond conditioned for the 
 payment during his life of an annuity equal to interest at 
 per cent, on the advancement, the moneys so advanced were 
 held to be a contrivance to defeat the tax, and liable. 247 
 
 And a deed of gift to a son, though made as an advance- 
 ment, and as such chargeable against the son's share of the 
 father's estate, is a succession under the act of congress, 248 
 as a conveyance made without valuable and adequate con- 
 sideration. 249 
 
 Where A. bequeathed property to B. and C, and on mak- 
 ing her will wrote to them that she intended the bequest to 
 be applied to a charitable purpose, and relied on their honor 
 to fulfill her wishes, and they accepted the trust in her life- 
 time, held that, the will itself not showing a charitable pur- 
 pose, the legacy was liable to duty. 250 
 
 But, as we have seen, whenever the absolute title passes 
 
 245 Waugh's Appeal, 78 Pa. St. 436. 
 
 24G Reish v. Coin., 100 Pa. St. 521, affirming 42 Leg. Int. 102. 
 247 Con well's Estate, 45 Leg. Int. 266. 
 24 8 j im e 30, 1S04, § 132. 
 
 24 9 u. S. v. Banks, 17 Fed. 322; U. S. v. Hart, 4 Fed. 293. 
 2nor u llen v. Attorney General, L. II. 1 H. L. 190. 
 (334)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 59 
 
 from the grantor to the grantee in the lifetime of the former, 
 the tax is not imposed, as where the grantor, at the request 
 of the grantee, through a third person, delivers the deed to 
 the latter for the grantee, even though it never comes to the 
 latter's possession until the grantor's death. And it would 
 seem to make no difference that the latter devises the same 
 property by will to the grantee as he takes under the deed. 201 
 
 And wmere defendant's mother took a vested interest in 
 a trust fund created by defendant's brother, the enjoyment 
 of which in possession only w r as postponed until the death 
 of defendant's said brother with a power of disposition by 
 will, and prior to the creation of the trust the mother had 
 made her will in favor of the defendant and her brother, and 
 the latter died before the mother, held that, as the trust 
 deed gave a vested remainder to the mother, the defendant 
 took under the latter's will, and not from the brother, and 
 that the fund was not liable to the tax. 252 Where, by the 
 terms of the deed, a part of the consideration of a voluntary 
 conveyance of land taking effect presently, was the mainte- 
 nance by the donee of the donor for life, and the same is not 
 charged on the real estate, the land is not chargeable with 
 the tax. 253 Where there has been in good faith a parol gift 
 of land, and continued possession and enjoyment by the 
 donees until the donor's death, the state cannot, in proceed- 
 ings to enforce the tax, take advantage of the statute of 
 frauds. 254 
 
 A promissory note of uncertain value, transferred by de- 
 cedent in his lifetime to another, who took the risk of col- 
 
 251 Stinger v. Com., 26 Pa. St. 422. See Du Bois' Appeal, 121, 
 Pa. St. 3GS, 15 Atl. 041. 
 
 252 Haekett v. Com., 102 Pa. St. 500. 
 
 253 in re McCormick's Estate (1S94) 3 Pa. Dist. R. S3S, 23 Pittsb. 
 Leg. J. (N. S.) 91. 
 
 254 In re Huey's Estate (1894) 24 Pittsb. Leg. J. (N. S.) 470. 
 
 (335)
 
 § 59 VESTED AND CONTINGENT ESTATES. [Ch. G 
 
 lection in consideration of an annual sum to be paid to de- 
 cedent as long as he should live, is not within the statute. 255 
 
 In England, under the legacy act, property passing under 
 trust deed, even with power of revocation, was not liable, 256 
 and so as to gifts inter vivos, 257 real estate of decedent sit- 
 uate in another state, held in trust for his nieces, is not 
 within the statute. 258 But the law in these respects is now 
 modified by statute, and real and personal property passing 
 by deed of trust or by gifts inter vivos or donatio mortis 
 causa to take effect at death are liable to succession duty. 25ft 
 
 The provisions of the New York statutes with reference 
 to the taxation of interests passing by deed, grant, bargain, 
 sale, or gift, made in contemplation of the death of the 
 grantor, or intended to take effect in possession or enjoy- 
 ment at or after such death, have already been referred to 
 at length. 260 
 
 Where the testatrix, by will, bequeathed all her property 
 to her executor individually, but agreed with him, at the 
 time of the making of the will, that the bequest should be in 
 trust for her brother, such trust is within the exemption of 
 the statute. 261 
 
 A bequest absolute in form to executors, pursuant to an 
 understanding between them and testator, by which a valid 
 parol trust was created in favor of certain charitable cor- 
 
 255 in re Garman's Estate, 3 Pa. Co. Ct. R. 550. But see In re 
 Biddle's Estate, 45 Leg. Int. 394. 
 
 2 56 Tompson v. Browne, 3 Mylne & K. 32. 
 
 2 5T Brown v. Advocate General, 1 Macq. H. L. Cas. 79. 
 
 2 5$ in re Dewey's Estate, N. Y. Law J. Oct. 21, 18S9. 
 
 250 Layton, Leg. Duty (9th Ed.; 1892) pp. 20-110 et seq.; 16 & 17 
 Vict. c. 51, §§ 1, 2, 8. 
 
 260 Supra, p. 327. For the taxation of such interest under the re- 
 troactive clause act of 1892, see supra, section 58, subds. c, f. 
 
 2oi in re Farley's Estate, 15 N. Y. St Rep. 727. Contra, Cullen 
 v. Attorney General, L. R. 1 II. L. 190. 
 (33G)
 
 Ch. 6] VESTED AKD CONTINGENT ESTATES. § 50 
 
 porations which were exempt from taxation, is not subject 
 to the legacy tax. 202 
 
 And where the property passed to trustees under a trust 
 deed, and the net income thereof to the grantor for life, 
 the trustees on her death to convert the property into money 
 and distribute the same among collaterals, and the deed 
 was irrevocable, held, that the corpus of the estate, having 
 passed at the date of the deed, and in one instance before 
 the act went into effect, was not within the law. 263 This is 
 not thought to be a well-considered case, and its authority 
 is doubtful in view of subsequent decisions by the same court 
 and the language of the statute of 1892. 
 
 Decedent, by will made in 1882, and by codicil executed 
 in 1SS9, gave his property in certain proportions to his wife 
 and issue. Afterwards he executed a deed of trust by 
 which he transferred the bulk of his property to a trustee in 
 trust to invest the same and apply the income therefrom to 
 the support and maintenance of the grantor and his family, 
 and, upon the death of the grantor, to distribute and pay 
 over the property and its proceeds to and among the heirs 
 or representatives in accordance with the provisions of his 
 will. The testator died in 1891. Held, that the property 
 passed under the will, and not under the deed executed sub- 
 sequently, and was liable to taxation. 264 
 
 Ransom, S., said: "It will be seen that the Pennsylvania 
 courts, in the cases cited above, while recognizing the fiction 
 of law that the deed granting the power and the will exe- 
 
 26 2 in re Murphy's Estate (1893) 4 Misc. Rep. 230, 25 N. Y. Supp. 
 107. 
 
 2 63 in re Hendricks' Estate (Suit.) 3 N. Y. Supp. 281; U. S. v. 
 Leverich, 9 Fed. 586. But see In re Riddle's Estate, 45 Leg. Int 394; 
 In re Lovelace, 4 De Gex & J. 340; In re Johnson's Estate (Sun*.) 
 19 N. Y. Supp. 963; In re Lines' Estate, 155 Pa. St. 378, 26 Atl. 728. 
 
 264 in re Johnson's Estate (Suit.) 19 N. Y. Supp. 963, citing Genet 
 v. Hunt. 113 N. Y. 158, 21 N. E. 91; Retell v. Com., 106 Pa. St. 521; 
 Seibert's Appeal, 110 Pa. St. 329, 1 Atl. 346. 
 
 LAW inher. — 22 (337)
 
 § 59 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 cuted thereunder, are to be construed as one instrument, 
 bold tbat the instrument is to be regarded as a deed to take 
 effect in enjoyment upon the decedent's death. The statute 
 of this state 265 corresponds in its language to the Pennsyl- 
 vania act, and should receive a similar construction. The 
 law when the deed goes into effect, viz. the death of the tes- 
 tator or donee of the power, should govern, 266 not the law at 
 the time the deed was executed." 
 
 Under the act of 1892 287 transfers by deed are taxable only 
 (1) when made in contemplation of the death of the trans- 
 ferror, or (2) are intended to take effect in enjoyment after 
 the death of the transferror. Where the transfer was in 
 the nature of a gift inter vivos, its taxation is not contem- 
 plated by the act. 268 
 
 But a gift causa mortis by decedent to his debtor of a 
 promissory note is, it seems, subject to the inheritance 
 tax. 269 
 
 So, where decedent made a gift causa mortis in writing, 
 of a box and its contents, consisting of savings bank books, 
 stating to the donee "that you will take charge of all my 
 personal effects of every kind, and to have and to hold the 
 same unto yourself, your heirs and assigns forever," and 
 thereupon delivered to the donee his papers and books, the 
 property was held liable to the inheritance tax. The court 
 said: "This statute 270 evinces the intention of the legisla- 
 ture to subject to a tax all property which should be trans- 
 ferred by a gift to take effect after the death of the grantor 
 
 2C5 Laws 1891, c. 215, amending Act 1S87. 
 
 see in re Roosevelt's Estate, 143 N. Y. 120, 38 N. E. 2S1. 
 
 267 Appendix, I., Laws 1892, c. 399. 
 
 268 in re David, 13 N. Y. Law J. 479. 
 
 2 69 in re Crosby (1891; Suit.) 20 N. Y. Supp. 62; In re Edwards' 
 Estate (N. Y. App.) 41 N. E. 89, affirming 32 N. Y. Supp. 901 (Sup.). 
 As to the taxation of donatio mortis causa under the English stat- 
 utes, see Layton's Legacy Duty (9th Ed.) p. 26. 
 
 270 Appendix, Act 18S7, c. 713, § 1. 
 (338)
 
 Cll. 6] VESTED AND CONTINGENT ESTATES. § 60 
 
 or bargainor. The title to the property passed to the appel- 
 lant upon its delivery to him by the donor, but the gift was 
 subject to revocation at all times during the lifetime of the 
 giver, and in that sense it took effect in enjoyment after the 
 death of the grantor. He could not have maintained an 
 action for the recovery of the money represented by the 
 bank books during the lifetime of Edwards, and therefore 
 he could not enter upon the full enjoyment of the gift until 
 after his death. The gift, therefore, seems to fall within the 
 spirit and intention of the statute, and the tax was, there- 
 fore, properly imposed." 271 
 
 § 60. Powers of Appointment. 
 
 Property devised to a daughter for life, with power of ap- 
 pointment by will in the life tenant, which property the 
 daughter by will devised to her brothers and sisters and 
 their children being lineal descendants of her father, is not 
 liable to the tax; 272 but where the power is improperly exer- 
 cised, and the estate descends as the estate of the donee to 
 collaterals, the tax is payable on the descent from the donee 
 to the appointee, notwithstanding the tax was paid in 
 another state on the descent from the donor to the donee. 273 
 
 In Re Stewart, 274 a trustee was given, under decedent's 
 will, power of appointment among such legatees named in 
 the will as he should select. 278 He executed the power four 
 
 271 Dykrnan, J., in Re Edwards' Estate (Sup.) 32 N. Y. Supp. 901, 
 affirmed, without opinion, in court of appeals, May 3, 1S95 (41 N. 
 E. 89). 
 
 272 Com. v. Williams, 13 Pa. St 29; Com. v. Sharpless, 2 Chest. 
 Co. Rep. (Pa.) 246. 
 
 273 Com. v. Sharpless, supra; Com. v. Schumacher, 9 Lane. Co. Bar 
 (Pa.) 199; Hackett v. Com., 102 Pa. St. 505. 
 
 274 io N. Y. Supp. 15 (Suit.), affirmed in 131 N. Y. 274, 30 N. E. 
 184. 
 
 87 5 As to discretion of trustees under powers under the English 
 
 (339)
 
 § 60 VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 years after decedent's death. Among certain of the ap- 
 pointees were collateral heirs, and it was held that, al- 
 though the property passing under the power could not be 
 appraised or taxed at decedent's death, it became apprais- 
 able and taxable at the time the power was executed. Ran- 
 som, S., said: "It is a well-settled principle of the law 
 that where parties take under a power of appointment they 
 take under the instrument creating the power, so that the 
 parties named by H. under the power given him must be 
 regarded as the persons selected by Mrs. Stewart. It is 
 true that their interest did not accrue until the date when 
 the power was executed, * * * at which date also the 
 tax upon their interests accrued." 277 These views were 
 affirmed in the court of appeals. 278 Where decedent died 
 in 1859, giving his daughter a life interest in a trust fund, 
 with power of appointment by will, and the daughter died 
 in 1893, appointing the fund, it was held liable to taxation, 
 under the retroactive clause of the act of 1892, 279 as against 
 the beneficiaries taking under the power. 280 The surrogate 
 said: "An estate or interest derived from the execution of 
 a power of appointment is regarded as acquired under 
 
 statutes, see Attorney General v. Simcox, 1 Excb. 749; Attorney 
 General v. Holford, 1 Price, 426; Attorney General v. Mangles, 5 
 Mees. & W. 120; Advocate General v. Ramsay, 2 Crorup., M. & R. 
 224. For cases generally upon the subject of powers under these 
 statutes, see Drake v. Attorney General, 10 Clark & F. 257; Attor- 
 ney General v. Brackenbury, 1 Hurl. & C. 7S2; Piatt v. Routh, 6 
 Mees. & W. 756. And see 36 Geo. III. c. 52, § 18; Attorney General v. 
 Munby, 3 Hull. & N. 826; Attorney General v. Chapman, [1S91] 2 B. 
 D. 532. 
 27 t See chapter 5, § 54, subds. d, c. 
 
 278 131 n. Y. 274, 30 N. E. 184, citing 4 Kent, Coram. 338; Jack- 
 son v. Davenport, 20 Johns. 537; 2 Sugd. Powers, p. 22. 
 
 279 chapter 399, § 1, subd. 3. See this clause and cases arising 
 thereunder considered supra, section 58, subds. c, f. 
 
 2so in re Brooks' Estate, per Fitzgerald, S., 32 N. Y. Supp. 176. 
 See, also, In re Tobias, supra. 
 (340)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 60 
 
 and by virtue of the instrument raising the power. Never- 
 theless, such estate or interest does not vest nor is it created 
 until the time of appointment, although the source of its 
 origin is found in the instrument conferring the power. 281 
 The circumstance that the appointee takes under such 
 instrument as the source of his title, and not any notion 
 that the estate or interest taken becomes vested or is cre- 
 ated, either actually or constructively, at the time such 
 instrument goes into effect, is the reason for regarding the 
 estate or interest created by the power as passing by a 
 transfer made by such instrument within the meaning of 
 the acts for the taxation of decedents' estates. 282 An es- 
 tate or interest originating in the manner described is, with 
 respect to the time of its creation and vesting the same, 
 in effect as if it were an estate acquired by direct and ex- 
 clusive operation of the instrument creating it by a person 
 who had come into being subsequently to the time when the 
 instrument took effect. The devise of a remainder depend- 
 ent upon a life estate and vesting in such person upon his 
 birth, is an instance of the disposition last referred to. The 
 estate or interest so acquired does not vest nor come into 
 existence until, in one case, the power has been executed, 
 and, in the other, until the beneficiary has come into being. 
 A different result the doctrine of relation is incapable of 
 producing, and it is properly confined in its application in 
 such cases and for the purposes of the acts mentioned re- 
 ferring the estate or interest to the source, whether imme- 
 diate or remote, from which the title is derived. In the 
 present case the estate or interest which the beneficiary has 
 taken under the power, as well as the right of possession 
 thereof, came into existence after the passage of the act, 283 
 
 2 8i Citing Jackson v. Davenport, 20 Johns. 551, 552; In re Stewart, 
 131 N. Y. 274, 30 N. E. 1S4. 
 
 282 in re Stewart, supra. 
 
 283 Laws 1892, c. 399, supra. 
 
 (341)
 
 § GO VESTED AND CONTINGENT ESTATES. [Ch. 6 
 
 under consideration. Similarly the beneficiary as beneficiary 
 had no previous existence. Such being the case, there is 
 no doubt that the beneficiary is, with respect to the estate, 
 which he has taken, a person who has become beneficially 
 entitled in possession to property after the passage of the 
 act of 1892, by a transfer previously made." 2Si Where the 
 estate of a resident decedent included real estate and chat- 
 tels in another state, and where, under a power of sale 
 given by his will to his executors for the purpose of paying 
 legacies and making distribution, said property was sold 
 and converted into money, held that the real property 
 without the state was not subject to appraisal and tax un- 
 der the statute, but that the personalty was. 285 
 
 Both the English legacy and succession duty acts impose 
 taxes upon property passing under powers of appointment. 286 
 Under the succession duty act, the appointee under a gen- 
 eral power of appointment which has taken effect on a death 
 happening since the commencement of the act takes a 
 succession from the donee of the power, and is liable to 
 duty. 287 
 
 It has been held, where property passed under an im- 
 perative special power, to the life tenant in trust, and the 
 appointees being specified in the decedent's will, that a 
 formal execution of the power by the life tenant in her 
 lifetime was not necessary to vest in the appointees title 
 to the property, and that notwithstanding one of the ap- 
 pointees, who was not taxable, might, if he should survive, 
 inherit the whole property, the shares of the nonexempt 
 
 2«* See, also, In re Johnson's Estate (June 16, 1892; Suit.) 19 N. 
 Y. Supp. 963. 
 
 285 i n re Swift (1893) 137 N. Y. 77, 32 N. E. 1096. 
 
 280 36 Geo. III. c. 52, § 18; 16 & 17 Vict. c. 51, § 4. See Charlton v. 
 Attorney General, 4 App. Cas. 427; Attorney General v. Bracken- 
 bury, 1 Hurl. & C. 782; Piatt v. liouth, 6 Mees. & W. 756. 
 
 2 87 Attorney General v. Upton, L. R. 1 Exch. 224. 
 (342)
 
 Ch. G] VESTED AND CONTINGENT !>I A § 01 
 
 remainder-men were immediately taxable. 288 But under 
 recent adjudications, however, no such tax can be so im- 
 posed until the estate vests in possession or enjoyment. 285 
 
 § 61. Legacies for Debts and Other Obligations. 2 "" 
 
 Decedents at times expressly provide for the payment of 
 their debts by will, bequeathing to the creditor a specific 
 amount in payment of his claim. In numerous instances 
 legacies are also bequeathed "free" or "clear of" the tax, and 
 in such cases the question frequently arises as to whether 
 the decedent's estate is to pay the tax or the legatee out of 
 the legacy. 291 
 
 While a legacy is defined to be any estate or interest in 
 property, either real, personal, or mixed passing by will, 292 
 the general rule is that a legacy in payment of a legal debt, 
 
 288 in re Hyde, 7 N. Y. Law J. 249, citing, on question of pow- 
 er. In re Livingston, 34 N. Y. 557; Watkins v. Reynolds, 123 N. Y. 
 211, 25 N. E. 322; Townshend v. Fromnier, 125 N. Y. 446, 2G N. E. 
 805. 
 
 2 89 See In re Curtis, 142 N. Y. 219, 36 N. E. 887; In re Roosevelt's 
 Estate, 143 N. Y. 120, 38 N. E. 2S1; In re Hoffman's Estate, 143 N. 
 Y. 327, 38 N. E. 311. 
 
 290 Legacies of $500 to collaterals, and legacies to lineal heirs ex- 
 ceeding $10,000, under the New York act of 1S92, are taxable where 
 the aggregate estate of the testator exceeds those amounts. See 
 In re Hoffman's Estate, 143 N. Y. 327, 38 N. E. 311. See, also, chap- 
 ter 3, § 41; chapter 5, § 53. 
 
 291 As to liability of executor and legatee inter se, see chapter 7, 
 § 64. As to the taxation of legacies given to executors in lieu of 
 commissions, see chapter 7, § 63. See, also, In re Sidell's Estate, 8 
 N. Y. Law J. 1404; In re Meyers, 5 N. Y. Law J. 532; In re Gould. 
 13 N. Y. Law J. 7S1. 
 
 292 com. v. Smith, 5 Pa. St. 142; In re King's Estate, 11 Phila. 27. 
 See "legacy" defined, 36 Geo. III. c. 52, § 7; 8 & 9 Vict. c. 76, § 4; 
 16 & 17 Vict. c. 57, § 1; In re Miller, 7 N. Y. Law J. 308. The 
 legacy of a slave was held taxable under the early Maryland stat- 
 ute. State v. Dorsey, 6 Gill, 388. 
 
 (313)
 
 § 61 VESTED AND CONTINGENT ESTATES. [Cll. G 
 
 or for services rendered the decedent upon request, is not a 
 gift, legacy, or property within these laws, and hence is not 
 liable to taxation. 203 
 
 Where a bequest is made to a creditor on condition that 
 he accepts it in full of all unsettled accounts and claims' 
 against testator, it is not subject to the tax, where it appears 
 that such accounts exceed the sum bequeathed. 294 
 
 The test as to whether a legacy is in payment of a debt 
 or is a gratuity liable to taxation was recentty considered by 
 Kennedy, S., 295 in a case where the decedent left a legacy to 
 a physician "in view and in consideration of his unremitting 
 care and attention to me during my years of sickness, with- 
 out asking any reward for services rendered." The court 
 held that this was a voluntary gift, and taxable. Kennedy, 
 S. "The estate which passes to an heir or legatee and upon 
 which a tax is to be assessed, is the amount which remains 
 to be distributed after all the debts and funeral expenses are 
 paid. Hence, the existence of a claim which the testator 
 might be honorably, but not legally, bound to pay, is insuf- 
 ficient. It must be one to which there is no legal defense, 
 and which the creditor can enforce by legal proceedings. 
 If this were not the legal rule, a testator might, either de- 
 signedly or otherwise, defeat the object of the statute, and 
 render it practically useless by simply reciting in his will 
 that the legacy is in consideration of care, attention, kind- 
 ness, favors received from or services performed by, the leg- 
 atee at some period of the testator's life. The reasons 
 which a testator may give for making a legacy, while appro- 
 priate in explanation of his motives, cannot be made use of, 
 
 293 in re Quinn's Estate, 8 Wkly. Notes Cas. 312; In re Rogers' 
 Estate, 2 Con. Sur. 198, 10 N. Y. Supp. 22; In re Reilly's Estate, 3 N. 
 Y. Law J. 796. 
 
 2»4 in re Underbill's Estate (Suit.) 20 N. Y. Supp. 134. 
 
 295 in re Doty's Estate, 7 Misc. Rep. 193, 27 N. Y. Supp. 653. See 
 In re Wright, 6 N. Y. Law J. 317. 
 (341)
 
 •Ch. 6] VESTED AND CONTINGENT ESTATES. § 61 
 
 either by himself or his legatee, to shield a legacy from taxa- 
 tion; because a legacy implies a bounty, and not the payment 
 of a debt. Hence, the court, in ascertaining whether a legacy 
 is taxable or not, has the right to determine, not only from the 
 provisions of the will, but by extrinsic facts, if necessary, 
 whether it is a voluntary gift or in payment of a legally en- 
 forceable debt. And if it appears that the legacy was a 
 pure gratuity, the legatee, if he accepts it, must take it 
 subject to the conditions upon which it was given, and sub- 
 ject also to the conditions which the law has impressed upon 
 it. The payment of a tax cannot be avoided by the mere 
 phraseology of the will. Declarations of the testator can- 
 not rise above the law and abrogate its provisions. The 
 tax cannot be eluded b}' the use of words not necessary to 
 make the gift effective. * * * If a testator makes a be- 
 quest or devise of property to his executors or trustees in 
 lieu of their legal commissions and allowances, the excess 
 beyond a reasonable compensation for their services is liable 
 to a tax; and we know of no good reason why a legacy in 
 payment for services, care, attention rendered a testator, 
 should not be placed upon the same basis. This course pro- 
 tects the state from fraud, and prevents legatees from avoid- 
 ing the tax which the statute has demanded. * * * For 
 acts of kindness shown, for favors received, for some act 
 done at an opportune moment, * * * a testator may, at 
 the time of making his will, feel exceeding grateful, and 
 think it his duty to express his appreciation and remem- 
 brance of them by legacies to those who have rendered 
 them; but, unless some legal and enforceable claim exist 
 against the testator by reason of them, a legacy thus given 
 in grateful recognition of the kindly act of friends and rel- 
 atives should be considered a bounty, and not the payment 
 of a debt, unless the debt is in some manner established to 
 the satisfaction of the court, and, for this reason, should 
 not be exempt from taxation." 
 
 (345)
 
 § 61 VESTED AND CONTINGENT ESTATES. [Ch. 
 
 The state has the right to inquire into the services claimed 
 to have been rendered, their character and value, and to the 
 extent only that the bequest was not a gratuity it would be 
 exempt. 296 
 
 Sums loaned by a testator to his sons, and which his will 
 provided should be included in his estate and divided equal- 
 ly among his children, the loans to be deducted from the 
 share of the children to whom made, are not advancements, 
 but legacies subject to taxation. 297 
 
 Where the bequest of the residue of testator's estate in- 
 cludes a note made by the legatee, the amount of such note 
 is subject to the legacy tax. 298 
 
 Testatrix was indebted to one B. upon a note. B. be- 
 queathed to testatrix the amount of the debt, and the latter, 
 reciting the indebtedness, bequeathed a portion of the same 
 to relatives of B., who claimed it was not taxable, as being 
 a legacy in payment of a debt. Held taxable; that, under 
 the terms of B.'s will, all property was bequeathed to testa- 
 trix, and thereby all obligation upon the note ceased. 
 "There was, in no sense, any debt, legal or moral, to the ben- 
 eficiaries under her own will. They take the legacy by vir- 
 tue of her bounty, and her recital therein of the note, and the 
 deduction from the face thereof, is simply to measure the 
 amount of the gift to the legatees, and to indicate the reason 
 therefor." 299 
 
 Where testatrix bequeathed all her property to one H., 
 "in consideration of a home for me at his house during my 
 life," and the will was executed pursuant to an agreement 
 that it should be so done, and that H. should provide for 
 her during life, which was done, held, that the legacy was 
 
 290 in re Richardson, 8 N. Y. Law J. 1392. 
 207 i n re Bartlett (1S93) 4 Misc. Rep. 3S0, 25 N. Y. Supp. 990. 
 298 in re Tuigg's Estate (July 10, 1891) 2 Con. Sur. 633, 15 N. Y. 
 Supp. 548. 
 290 in re Wright, 6 N. Y. Law J. 317. 
 (346)
 
 Ch. 6] VESTED AND CONTINGENT ESTATES. § 61 
 
 not a gift, but the payment of a valid claim, and was there- 
 fore not subject to the legacy tax. 300 
 
 So, a debt released by will, where the debt was previously 
 outlawed by the statute of limitations, passes nothing, and 
 the amount of such debt cannot be assessed for the tax. 301 
 
 In England, however, under the legacy act, the rule is 
 different, and the forgiveness of a bond debt by will was 
 held to be a legacy liable to the duty; 302 and in one case, 
 where the testatrix generously provided in her will for the 
 payment of all her husband's debts, the creditors were, 
 nevertheless, compelled to pay the duty. 303 
 
 Where, however, the legacy is a pure gratuity for services 
 rendered testator without expectation of reward or compen- 
 sation, it is taxable, 304 and where a testatrix, reciting that A. 
 was indebted to her on bond, declared that in case he made no 
 demand against her estate for boarding her she bequeathed 
 him the debt due by him and directed her executors to can- 
 cel the bond, the legacy is liable. 305 
 
 8oo in re Hulse's Estate, (Suit.) 15 N. Y. Supp. 770. 
 
 3oi Stinger v. Com., 26 Pa. St. 429. See Williamson v. Naylar, 
 3 Younge & C. 208. 
 
 302 Attorney General v. Holbrook, 3 Younge & J. 114. 
 
 803 Foster v. Ley, 2 Scott, 43S; Turner v. Martin, 7 De Gex, M. 
 & G. 429. 
 
 so* in re Gibbons' Estate, 16 Phila. 218. 
 
 80 5 Tyson's Appeal, 10 Pa. St. 220. See In re Tuigg's Estate, supra. 
 
 (347)
 
 § 62 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 CHAPTER VII. 
 
 SURROGATES, DISTRICT ATTORNEYS, COUNTY TREAS- 
 URERS, REGISTERS, EXECUTORS, AND OTHER 
 OFFICERS. 
 
 $ 62. Surrogates, District Attorneys, County Treasurers, Registers, 
 and Appraisers. 
 
 63. Executors, Administrators, and Trustees. 
 
 64. Liability of Executors, Administrators, Trustees, Heirs, and 
 
 Legatees inter Se. 
 
 65. Compromises between Public Officers, Executors, and Lega- 
 
 tees. 
 
 § 62. Surrogates, District Attorneys, County- 
 Treasurers, Registers, and Appraisers. 
 
 Under collateral inheritance, legacy, and succession tax 
 laws various powers, duties, and liabilities in connection 
 with the assessment, collection, and .payment of the tax are 
 imposed upon surrogate, probate, and orphans' courts, dis- 
 trict attorneys, registers, county treasurers, executors, ad- 
 ministrators, trustees, appraisers, and other persons and of- 
 ficials, which it is proposed to consider in the present chap- 
 ter. As these duties are principally statutory, some of the 
 provisions of law relating thereto may be consulted in the 
 Appendix. 
 
 Questions concerning the appraisement or valuation of es- 
 tates subject to the tax have been treated separately, 1 and 
 proceedings regarding the remedy and practice to be pur- 
 sued under these acts have been reserved for the last chap- 
 ter. 2 
 
 Surrogates' courts in New York are constitutionally em- 
 powered to hear and determine all questions relating to the 
 
 i Chapter 5. 2 Chapter 8. 
 
 (348)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 62 
 
 estates of decedents arising under these statutes, 3 and it 
 would appear that exclusive jurisdiction, in the first in- 
 stance, has been conferred upon the surrogate to appoint the 
 appraiser who is to value the taxable property, and upon his 
 report to assess, fix, and determine the liability of property 
 to this tax, and to enforce payment thereof, subject to re- 
 view by appeal, as in other cases. 4 
 
 The initial steps which the statute requires the surrogate 
 to take are those of taxing officers, and not of judges. He 
 appoints an appraiser to appraise the cash value of the prop- 
 erty. Upon the coming in of the report he may enter an or- 
 der determining the cash value of the estate: The order 
 may be based upon the report, or upon any other proof be- 
 fore him, and this he does "as of course." But the party 
 aggrieved may take an appeal from the order thus made to 
 the surrogate, and then for the first time the procedure takes 
 on a judicial character. 5 
 
 The act of 1887 6 provided that the surrogate should have 
 jurisdiction to hear and determine all questions in relation to 
 the tax. The same provision is contained in the transfer tax 
 act of 1892. 7 The power and jurisdiction of the surrogate 
 under these acts is now definitely settled under the New 
 York statutes by many recent adjudications. He has full 
 power to determine all questions of liability or exemption. 
 When we read all the provisions of these acts it is perfectly 
 apparent that an especial system of taxation was created 
 
 a In re McPherson, 104 N. Y. 323, 324, 10 N. E. 685. 
 
 * Appendix, I. a, Laws N. Y. 18S7, c. 713, § 15; In re McPherson, 
 supra. See U. S. v. Trucks, 27 Fed. 541; Central Trust Co. v. New 
 York City & N. R. Co., 47 Hun, 587; Id., reversed on another point, 
 110 N. Y. 250, IS N. E. 02; Anderson v. Anderson, 112 N. Y. 104, 113, 
 19 N. E. 427. See chapter 5, §§ 50, 55. 
 
 s Weston v. Goodrich (1895; Sup.) 33 N. Y. Supp. 382. 
 
 e Chapter 713, § 15. 
 
 7 Appendix, I. e, c. 399, § 10. 
 
 (349)
 
 § 62 SURROGATES, DISTRICT ATTORNEYS, ETC. [Cll. 7 
 
 for the benefit of the state with all the necessary machinery 
 for its working; the control with respect to which was vest- 
 ed in the surrogate's court, with a jurisdiction exclusive in 
 its nature. In the assessment of a tax upon property pass- 
 ing by will or by the intestate law the responsibility is im- 
 posed by law upon the surrogate. He acts for the state, 
 and he is commanded to assess and fix the tax to which the 
 property is liable; and his authority to assess involves the 
 necessity as well as the power to determine the question of 
 liability, as much as it does in the case of assessors of taxes 
 in the general scheme of taxation. 8 
 
 Under this power it has been held, under the act of 1887, 
 that the surrogate's decree obtained by the executor of a 
 decedent exempting certain institutions from taxation, with- 
 out previous notice to any state official, was conclusive upon 
 the state, 9 and a bar to any proceeding by the state thereafter 
 to recover the tax alleged to be due; the court holding that 
 no state official was entitled to notice under that act. 10 By 
 the act of 1892, however, 11 notice of these proceedings is 
 now required to be given to the county treasurer or comp- 
 troller, and the proceeding will be void without such notice. 12 
 
 Under these provisions of the statutes the surrogate has 
 full power to construe a will. Hence where the will of dece- 
 dent attempted to create certain trusts for the disposition of 
 his residuary estate, which were void as contravening the st t- 
 ute against perpetuities, and were so conceded, and the bene- 
 
 s In re Wolfe, 137 N. Y. 205, 33 N. E. 156, reversing 66 Him, 389, 
 21 N. Y. Supp. 515, 522, distinguished in Re Smith's Estate (Suit.) 
 23 N. Y. Supp. 762. In re Ullmann, 137 N. Y. 403, 33 N. E. 480; Weston 
 v. Goodrich ( Sup.) 33 N. Y. Supp. 382; In re Park's Estate, 8 Misc. 
 Rep. 550, 29 N. Y. Supp. 1081. 
 
 9 As to conclusiveness of surrogate's decree, see Bliss, Code Civ. 
 Proc. N. Y. (4th Ed.) § 2743. 
 
 io in re Wolfe, supra. 
 
 ii Appendix, I. e, c. 399, § 12. 
 
 12 Chapter 8, pp. 391, 400. 
 (350)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § G2 
 
 ficiaries under the residuary clause abandoned all claim to 
 the real estate embraced therein to the heirs, who sold it, 
 received the consideration therefor, and out of the purchase 
 money made provisions for payment of the tax in case they 
 were held liable, the surrogate has jurisdiction to determine 
 that the residuary estate did not pass to the legatees or 
 devisees, but to the heirs and next of kin, and that a decree 
 assessing the heirs for that portion of the estate which 
 passed to them was valid. 13 
 
 In the Ullmann Case it was held that the surrogate's court 
 had power to decide under these statutes every question 
 that may arise in a proceeding under the act which may be 
 necessary to fully discharge the duties imposed by it. Said 
 court, therefore, may and must decide whether any property 
 of the decedent has passed to another under the will or un- 
 der the laws of intestacy, and so may determine as to wheth- 
 er dispositions made by a will of decedent are void, and if 
 so that the property embraced therein has passed to heirs 
 or next of kin, under the statutes of descent and distribu- 
 tion. 14 
 
 The surrogate has power to pass upon the validity of a 
 bequest in the appraisement proceeding. 15 
 
 Under these provisions, 16 he has power, where there are 
 debts subsequently proved against the estate, to direct a 
 transfer tax to be refunded while it is still in the hands of 
 the county treasurer. 17 
 
 And where the tax has been paid into the state treasury, 
 and debts are subsequently proved, the state comptroller 
 
 is In re Ullmann, 137 N. Y. 403, 33 N. E. 480, reversing 67 Hun, 5, 
 21 N. Y. Supp. 758. 
 
 14 In re Ullmann, supra. 
 
 is in re Bradshaw, 13 N. Y. Law J. 854; citing In re Ullmann, 
 supra. 
 
 is Laws 1892, c. 399, § 10. 
 
 17 in re Park's Estate, supra. 
 
 (351)
 
 § G2 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 may be authorized to refund an equitable proportion of tlie 
 tax paid. 18 
 
 The jurisdiction of the surrogate being, in the first in- 
 stance, exclusive, the supreme court of the state has no ju- 
 risdiction to determine, in the first instance, whether prop- 
 erty of a deceased person is subject to a collateral inherit- 
 ance or transfer tax under these statutes, even though such 
 question be raised in an action in equity in which other 
 forms of relief are demanded which are within such court's 
 jurisdiction. 19 Parker, J., said: "Instead of providing for 
 the appointment of assessors or collectors or taxing officers, 
 under some other name, to execute the provisions of the 
 law, the legislature not unwisely determined that the sur- 
 rogates of the several counties of the state were in a posi- 
 tion to more economically and effectively enforce collection 
 of the tax than any other agency that could be devised, and 
 so the surrogates were made special taxing officers, and 
 charged with the duty of enforcing the collection of this 
 special state tax, upon such notice to those interested, and 
 in the manner provided by the statute. That the statute 
 constituted the surrogate, and he alone, the assessing and 
 taxing officer, and, as such, the only representative of the 
 state, in the first instance, for all purposes relating to the 
 appraisement and taxation of property, will clearly appear, 
 from a brief reference to certain of its provisions. 20 * * * 
 The supreme court has no jurisdiction to make an assess- 
 ment which the town assessor is required to make, in the 
 first instance, nor has it, in the absence of statutory author- 
 is In re Park's Estate, supra; citing Laws 1892, c. 399, § 6. 
 io Weston v. Goodrich, supra, citing In re Wolfe and In re Ullmanu, 
 supra, and distinguishing cases in which jurisdiction had been exer- 
 cised by the supreme court without being questioned. See McVean v. 
 Sheldon, 48 Hun, 163; Catlin v. Trustees of Trinity College, 49 Hun, 
 278, 1 N. Y. Supp. 808; Id., 113 N. Y. 133, 20 N. E. 864; Talmadge v. 
 Seaman, 9 Misc. Rep. 303, 30 N. Y. Supp. 304, reversed as In re 
 Seaman (Oct. 8, 1S95; Ct. App.) 41 N. E. 401. 
 20 The court then cited Laws 1892, c. 399, §§ 10, 11, 13, 15, 18. 
 (352)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 62 
 
 ity, the right to usurp the fuuctious of the surrogate, as a 
 taxing officer under the taxable transfer act. The question 
 of liability to taxation is a fact to be determined by the as- 
 sessors, and which gives them jurisdiction to assess. It is 
 a conditional step in the proceeding for assessment; and 
 the court cannot, in advance of action by the assessors, take 
 that question away from them. * * * Authority to pass 
 upon the merits of assessments has been conferred upon the 
 court by statute; 21 but authority to assess or command the 
 assessment of taxes is neither a part of the original juris- 
 diction of the supreme court nor has it ever been conferred 
 upon it by the legislature, which alone has power to deter- 
 mine all questions of state necessity involved in ordering a 
 tax, and in selecting the agencies for its collection." 
 
 But by an act passed by the New York legislature of 1895, 
 after the rendition of the above decision, 22 it is now provid- 
 ed that the supreme court of the state may exercise juris- 
 diction in cases of fraudulent, collusive, or erroneous assess- 
 ments, the act providing that, within two years after the 
 entry of an order or decree of a surrogate determining the 
 value of an estate and assessing the tax thereon, the comp- 
 troller of the state may, if he believes that such appraisal, 
 assessment, or determination has been fraudulently, collu- 
 sively, or erroneously made, make application to a justice 
 of the supreme court of the judicial district in which the 
 former owner of such estate resided for a reappraisal there- 
 of. The justice to whom such application is made may 
 thereupon appoint a competent person to reappraise such 
 estate. Such appraiser shall possess the powers, be subject 
 to the duties, and receive the compensation provided by sec- 
 tions 11 and 12 of the act. The report of such appraiser 
 shall be filed with the justice by whom he was appointed, 
 
 2i Laws 18S0, c. 260. 
 
 22 Appendix, I. e, Laws 1S95, c. 556, amending Laws 1892, c 399. 
 § 13. 
 
 law inher. — 23 (353)
 
 § 62 SUBROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 and thereafter the same proceedings shall be taken and had 
 by and before such justice as are herein provided to be 
 taken and had by and before the surrogate. The determi- 
 nation and assessment of such justice shall supersede the 
 determination and assessment of the surrogate, and shall 
 be filed by such justice in the office of the state comptroller. 
 Proceedings have already been initiated by the state comp- 
 troller under this act. 
 
 The surrogate first acquiring jurisdiction under the act 
 retains such jurisdiction throughout all proceedings, even 
 as to real estate situate in another county; hence the tax 
 should be paid in the county where jurisdiction is first ac- 
 quired. 23 
 
 Where the surrogates of the county of New York cannot 
 act, it would seem that the court of common pleas for that 
 county may exercise jurisdiction. 24 
 
 Subject to the right of review by appeal, the surrogate 
 is deemed to be the superior authority upon all questions, 
 including that of the value of the estate which is subject 
 to the tax. 25 
 
 He is not bound by the appraiser's report, or by the facts 
 which appeared before him, but he may hear such new evi- 
 dence and statements as may be properly presented. 26 
 
 As we have already seen, 27 his decree declaring an ex- 
 emption under the acts of 1S85 and 1887 was held conclu- 
 
 23 in re Keenan (Suit.) 5 N. Y. Supp. 200; In re Keith's Estate 
 ■(Surr.) 5 N. Y. Supp. 201. 
 
 24 in re Cunningham, 7 N. Y. Law J. 954. 
 
 25 in re Astor, 6 Dem. Sur. 402, 2 N. Y. Supp. 630; In re Frowe, 3 
 N. Y. Supp. 134; Frazer v. People, 6 Dem. Sur. 174, 3 N. Y. Supp. 
 134. See Stinger v. Com., 26 Pa. St. 424; Strode v. Com., 52 Pa. St. 
 186. 
 
 26 in re McPherson, supra; In re McGowan's Estate, 3 N. Y. Law J. 
 888. 
 
 27 In re Wolfe, 137 N. Y. 205, 33 N. E. 156, distinguished in Re 
 Smith's Estate (Surr.) 23 N. Y. Supp. 763. 
 
 (354)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 02 
 
 give upon the state and its officials, even where they were 
 not notified, or given proper opportunity to be heard. 28 
 
 But now, by the act of 1892, 29 the county treasurer, or 
 comptroller of the county, must be notified of all proceed- 
 ings under the act, otherwise they are void, as against the 
 state. 30 
 
 The surrogate's decree is conclusive, however, upon the 
 rights of an adopted son, who had legal notice of the ap- 
 praisement, and the decree is unaffected by a subsequent 
 change or amendment of the law. 31 
 
 ISTo proceeding will be made by the surrogate, of his own 
 motion, to enforce payment of the tax, until the expiration 
 of 18 months from the decedent's death. 32 
 
 He has power to enforce his decrees under these statutes 
 by such proceedings and methods as are provided for the 
 enforcement of the usual decrees of his court. 33 
 
 Against persons interested in the property liable to the 
 tax, other than executors, administrators, and trustees, the 
 surrogate has the power, on return of an execution issued 
 on his decree, to enforce it by proceedings for contempt; 34 
 
 2 8 Chapter 8, § 66; In re Wolfe, supra. See post, p. 398; In re Mc- 
 pherson, supra; In re Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 239. 
 
 29 Appendix, I. e, c. 399, § 12. 
 so Chapter 8, § 66, p. 398. 
 
 31 In re Miller, 6 Dem. Sur. 119, affirmed 47 Hun, 394; Id., 110 N. Y. 
 216, 18 N. E. 139; In re Astor, 6 Dem. Sur. 40S; In re Kemeys, 56 
 Hun, 117, 9 N. Y. Supp. 182. As to adopted children, see chapter 3, 
 § 37; chapter 8, § 69. 
 
 32 in re Astor, supra. 
 
 3 3 in re McPherson, 104 N. Y. 323, 10 N. PJ. 685; In re Ullraann. 
 137 N. Y. 403, 33 N. E. 480. 
 
 34 In re Prout's Estate (Surr.) 3 N. Y. Supp. 831; In re Oilman's Es- 
 tate, 6 Dem. Sur. 358; Code Civ. Proc. § 2555; In re Vanderbilt's Es- 
 tate (Suit.) 10 N. Y. Supp. 239; In re Pelton's Estate, 57 Hun. 590, 
 10 N. Y. Supp. 642; In re Curtis, 73 Hun, 191, 25 N. Y. Supp. 909. 
 
 (355)
 
 § 62 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 also by execution and attachment against the person, 35 but 
 execution should first issue. 
 
 As to executors, administrators, and trustees, applica- 
 tion for an order directing them to pay the tax may be made 
 to the surrogate without leave. 36 
 
 So it would appear that the surrogate has power to order 
 a reference in these proceedings upon any disputed ques- 
 tions of fact, or to determine them himself, affording the 
 parties the right of examination and cross-examination, or 
 the submission of such proof as he may deem proper. 37 
 But it is doubtful whether the surrogate has any jurisdic- 
 tion to compel a legatee to repay an executor for taxes 
 paid by the latter for the legatee's benefit. 38 
 
 It is held that he has no jurisdiction to determine the 
 liability of an executor to pay the tax on motion of the 
 executor, but only by proceedings instituted by the district 
 attorney as provided by the statute. 39 
 
 Upon this subject the law of New York 40 provides, in 
 effect, that whenever the comptroller or county treasurer of 
 any county shall have reason to believe that any tax is due 
 and unpaid, after the "refusal or neglect" of the persons 
 
 8 5 in re Cockey, 8 N. Y. Law J. 1507. 
 
 86 In re Prout's Estate, supra. 
 
 87 See In re Pearsall, 51 Hun, 639, 4 N. Y. Supp. 365; Code Civ. 
 Proc. § 2546; In re McPherson, 104 N. Y. 323, 10 N. E. 685; In re 
 Astor, 6 Dem. Sur. 416 (see this case for rules established by the 
 surrogate of New York county under this act). 
 
 38 See In re Underhill, 117 N. Y. 471, 22 N. E. 1120; In re Keech's 
 Estate (Surr.) 7 N. Y. Supp. 331, affirmed 57 Hun, 588, 11 N.'Y. Supp. 
 265. 
 
 8 9 In re Farley, 15 N. Y. St. Rep. 729; In re Arnett, 49 Hun, 599, 
 2 N. Y. Supp. 428; In re Jones, 5 Dem. Sur. 30; In re Vanderbilt's 
 Estate, supra. But see In re Wolfe, 137 N. Y. 205, 33 N. E. 156. 
 
 «o Appendix, I. a, Act 1SS7, c. 713, §§ 16, 17. 
 (356)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 62 
 
 interested 41 in the property liable to said tax to pay the 
 same, he shall notify the district attorney of the proper 
 county, in writing, of such failure or neglect, and the latter, 
 if he have probable cause to believe a tax is due and unpaid, 
 shall prosecute the proceeding in the surrogate's court for 
 the enforcement and collection of such tax. By the act of 
 1892, 42 it is now provided that the district attorney shall 
 apply to the surrogate's court for a citation, citing the per- 
 sons liable to pay such tax to appear before the court on 
 the day specified, — not more than three months after the 
 date of such citation, — and show cause why the tax should 
 not be paid. The surrogate, upon such application, and 
 whenever it shall appear to him that any such tax has not 
 been paid as required by law, shall issue such citation; 
 and the service of such citation, and the time, manner, and 
 proof thereof, and the hearing and determination thereon, 
 and the enforcement of the determination or order made by 
 the surrogate, shall conform to the provisions of the Code 
 of Civil Procedure for the service of citations out of the 
 surrogate's court, and the hearing and determination there- 
 on, and its enforcement, so far as the same may be appli- 
 cable. 
 
 The provision requiring the comptroller to have "reason 
 to believe" that a tax is due, and the district attorney "to 
 have probable cause" to believe a tax is due, are evidently 
 synonymous in meaning; and they would seem to disclose 
 an intention on the part of the legislature to vest each of 
 those officials with discretionary power to determine pre- 
 liminarily, to their own satisfaction, upon the facts of each 
 case, whether, in their judgment, there is good ground for 
 believing a tax to be due and unpaid, so as to warrant the 
 commencement of a proceeding to collect. Hence it would 
 
 41 As to meaning of "persons interested," see In re Arnett, supra; 
 In re Wagner's Estate, 119 N. Y. 32, 23 N. E. 200. 
 
 42 Laws 1892, c. 399, § lo, as amended Laws 1893, c. 378. § 1. 
 
 (357)
 
 § 62 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 seem that their mere reasons for believing a tax to be due 
 and unpaid cannot be controverted by the party against 
 whom the proceeding is brought. 43 
 
 The law 44 has reference only to a case where a tax is 
 due and has not been paid. The tax may be due because 
 the surrogate had so determined, 45 or, where no proceedings 
 have been had for appraisement, etc., the comptroller and 
 district attorney may believe a tax to be due, and in either 
 case the machinery may be set in motion to collect through 
 the provisions of the statute. 46 In such a proceeding the 
 question of liability can be determined by the surrogate. 47 
 
 From the fact that the act requires the proceeding to be 
 prosecuted by the district attorney, it would seem proper to 
 institute it in his name. He has the right to prosecute to 
 decree the proceeding instituted by him to compel payment 
 of the tax; and where begun first by him it has precedence 
 over any proceeding begun by the executor. 48 The estab- 
 lished practice in New York county, and, perhaps, elsewhere 
 in the state, is for the last-named officer to petition the court 
 upon his own verified petition, 49 setting forth the necessary 
 facts, 50 and citing, upon due notice, all persons interested in 
 the property liable to the tax, to wit, the county treasurer 
 or comptroller, the executor, administrator, or trustee, and 
 the legatees or devisees entitled to the taxable interest, to 
 show cause why the tax should not be paid. These persons, 
 and all others interested in the estate, are entitled to no- 
 
 43 See In re Vanderbilt's Estate (Suit.) 10 N. Y. Supp. 239. 
 
 44 Section 17 of the act of 1887. 
 
 45 Under Laws 1887, § 13. 
 4 6 Laws 1887, §§ 16, 17. 
 
 47 In re Wolfe, 137 N. Y. 205, 213, 33 N. E. 156, distinguished in 
 Re Smith's Estate (Suit.) 23 N. Y. Supp. 762. 
 
 48 in re Eaton. 13 N. Y. Law J. 622. 
 4 See Forms, Appendix, 527. 
 
 60 in re Vanderbilt's Estate, supra. See In re Arnett, 49 Hun, GO;;. 
 2 N. Y. Supp. 428. 
 (358)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 62 
 
 tice, in order that they may have an opportunity to be heard 
 upon the proceeding. The proceeding, as to persons not 
 notified or heard, becomes absolutely void. 51 
 
 But the district attorney has no power to institute any 
 proceedings to collect the tax unless and until notified by 
 the comptroller or county treasurer of such refusal or neg- 
 lect 52 of the persons liable to pay the tax. 53 The district 
 attorney, though not formally cited, is, however, a proper 
 party upon a final accounting of an executor, as being in- 
 terested in the estate, 54 upon behalf of the state, for the 
 purpose of collecting the tax, and even though the state has. 
 not been cited; 55 though upon such a proceeding it seems 
 he will not be entitled to the payment of the tax until the 
 tax has been fixed, after citation to all persons interested, 
 as required by the act. 56 
 
 Under the act of 1887, in order to afford the representa- 
 tives of the estate a reasonable time in which to settle its. 
 
 si Chapter 8, § 66; In re McPherson, 104 N. Y. 322, 323, 10 N. E. 
 685; In re Miller's Estate, 110 N. Y. 216, 224, 18 N. E. 139; In re Van- 
 derbilt's Estate (Surr.) 10 N. Y. Supp. 239; In re Cockey, 8 N. Y. Law 
 J. 1507. 
 
 52 See Frazer v. People, 6 Dem. Sur. 174. Under the acts of con- 
 gress a refusal or neglect only arises after demand made. U. S. v. 
 Pennsylvania Co., 27 Fed. 539. 
 
 53 in Re Jones, 5 Dem. Sur. 30, it was suggested that the only way 
 by which the surrogate can compel the executor or administrator 
 to pay the tax is to refuse to allow him credit upon his accounting, 
 etc. But it is apparent that the district attorney is given ample 
 power under the act to proceed directly on notice from the county 
 treasurer or comptroller. See Appeudix, I. a, c— Laws 1S87, c. 113,. 
 § 17; Laws 1892, c. 399, § 15; Laws 1S95, c. 378, § 1; In re Arnett, 
 supra; In re Vanderbilt's Estate, supra; In re Wolfe, 137 N. Y. 205, 
 33 N. E. 156. 
 
 5-t Words "person interested in the estate" defined. In re Wagner's 
 Estate, 119 N. Y. 32, 23 N. E. 200. 
 ss in re Arnett, supra; citing Code Civ. Proc. § 2731. 
 es Laws N. Y. 1887, c. 713, §§ 13-16. 
 
 (359)
 
 § 62 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 affairs it was held that no proceedings could be commenced 
 upon behalf of the state to compel payment of the tax until 
 after the expiration of 18 months from decedent's death. 57 
 
 Where a tax is unpaid, and a proceeding is instituted by 
 the district attorney under the statute to collect the same, 
 the executor or trustee becomes personally liable for the 
 costs, 58 the amount of which was regulated by the Code un- 
 der the acts in existence prior to the act of 1892. 59 Such 
 costs are now regulated by the act of 1892, 60 which provides 
 that the costs awarded by any decree of the surrogate, after 
 the collection and payment of the tax to the treasurer or 
 comptroller, may be retained by the district attorney for 
 his own use. Such costs shall be fixed by the surrogate in 
 his discretion, but shall not exceed, in any case where there 
 has not been a contest, the sum of $100, or, where there has 
 been a contest, the sum of $250. 
 
 It seems the district attorney is not entitled to costs un- 
 less he is successful. 61 An application for costs, under this 
 section, which alleges the filing of a petition to compel pay- 
 ment of the tax, the issuance of a citation thereon, and that 
 the proceeding was commenced in good faith, after notice 
 from the comptroller that the tax had not been paid, but 
 
 67 Frazer v. People (Surr.) 3 N. Y. Supp. 134; In re Astor, 6 Deru. 
 Sur. 402, 412. 
 
 es in re Minturn's Estate, 3 N. Y. Law J. 804; In re Cockey, 8 N. 
 Y. Law J. 1507. 
 
 69 Code Civ. Proc. § 2561; In re Stucke, N. Y. Daily Reg. April 25, 
 1889; In re Pond, N. Y. Daily Reg. June 13, 1S89. But see In re 
 Enston, 5 Dem. Sur. 95. Under section 2561 the district attorney 
 is entitled to $70 where there is a contest and $25 where there is no 
 contest. In re Stucke, supra. As to what is not a "refusal or neg- 
 lect" to pay taxes, so as to bar the district attorney from costs under 
 section 17 of the statute, and when he is entitled to costs under sec- 
 tion 19, Act 1887, see Frazer v. People, supra. 
 
 eo Chapter 399, § 15, as amended by Laws 1895, c. 378. 
 
 6i In re Clarke, 10 X. Y. Law J. 775; In re McCarthy's Estate 
 (Suit.) 25 N. Y. Supp. 9S7. 
 (3 GO)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 62 
 
 which did not show facts from which the surrogate could 
 determine as to the existence of "probable cause" for the 
 proceeding, is insufficient to warrant the surrogate in grant- 
 ing costs. 62 
 
 Ransom, S., said: "It will be seen, therefore, that the sec- 
 tion provides clearly and systematically for the manner in 
 which the expenses of these three proceedings shall be de- 
 frayed: First. For proceedings, instituted by the district 
 attorney, in which he is successful in collecting the tax. 
 That it refers to successful proceedings is apparent from the 
 provision that the costs may be retained by the district at- 
 torney for his own use. Such costs, except as to the amount, 
 are governed by the section of the Code and the rules of the 
 court applicable to other proceedings therein. Rule 22 pre- 
 scribes the practice whenever a party shall deem himself en- 
 titled to costs which include any disbursements to which he 
 may believe himself entitled. 63 Second. For proceedings in 
 which the district attorney is unsuccessful. This is intend- 
 ed as a precaution against the indiscriminate commence- 
 ment of proceedings without sufficient preliminary inquiries, 
 and calls for the judicial determination by the surrogate, 
 upon proof, that there was probable cause for commencing 
 the same. The affidavit in the case at bar simply sets 
 forth that the comptroller notified the district attorney, and 
 that the proceedings were commenced in good faith. It 
 furnishes no evidence as to the facts and circumstances 
 from which the court may form an opinion as to the exist- 
 ence of probable cause. That the comptroller believed that 
 there was a tax due, and that the district attorney had prob- 
 able cause to believe that the tax was due, is not sufficient 
 basis on which this court should find judicially that proba- 
 ble cause existed." 64 
 
 62 in re McCarthy's Estate (Sum) 25 N. Y. Supp. 9S7. 
 es Code Civ. Proc. N. Y. § 2r>.->9. 
 «4 In re McCarthy's Estate, supra. 
 
 (361)
 
 § 62 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 Where the comptroller or county treasurer is a successful 
 party, the Code G5 applies, and he is entitled to $70 costs of 
 contest and $10 each for trial days exceeding two; and the 
 surrogate's discretion in awarding costs will not be re- 
 viewed on appeal except for sufficient cause. 66 
 
 The tax should be paid to the treasurer of the county 
 where jurisdiction is first acquired. 67 
 
 In New York the county treasurer or comptroller must 
 pay the appraiser's fees out of any moneys in his hands re- 
 ceived on account of taxes, even though he may have re- 
 ceived nothing as yet from the estate appraised by the ap- 
 praiser; and mandamus will lie to compel him to pay the 
 fees due. 68 
 
 In Pennsylvania 69 the proceedings to collect, where the 
 tax is not paid, within one year after decedent's death, to 
 the register of wills, are begun in the orphans' court, 70 by 
 bill or petition filed by the register. And the court is au- 
 thorized, upon his application, to cite the executor or ad- 
 ministrator to file an account or to cite them and the heirs 
 to show cause why the tax should not be paid; and the 
 register may thus compel payment from the executor or ad- 
 ministrator who has neglected to pay the tax. 71 
 
 6 5 Bliss, Code Civ. Proc. (4th Ed.) § 2561. 
 
 6 6 in re Hoffman's Estate, 7G Huii, 391), 27 N. Y. Supp. 10S6. 
 
 67 in re Keenan (Suit.) 5 N. Y. Supp. 200; In re Keith's Estate (Surr.> 
 5 N. Y. Supp. 201. Qufiere, as to the right of the comptroller or coun- 
 ty treasurer to sue the executor at law for these taxes. See In re 
 Jones, 5 Dem. Sur. 36; Montague v. State, 54 Md. 483; Torrey v. 
 Willard, 55 Hun, 78, 8 N. Y. Supp. 392. 
 
 6 8 in re Murray, per Bartlett, J., Kings Co., N. Y. Sup. Ct, opinion 
 not reported. As to commissions of county treasurer and effect of 
 his receipt for taxes, see In re Keenan, supra. 
 
 eo See Scott, Intest. Laws (Pa.) p. 1871. 
 
 to Appendix, III., Laws 1887, p. 79, §§ 14, 15. 
 
 7i In re Cullen's Estate, 26 W. N. C. 216. As to duties of register 
 and liability of his sureties, see Com. v. Toms, 45 Pa. St. 408; Scott, 
 Intest. Laws, p. 315. Effect of register's receipt in full for taxes, 
 (3G2)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 63 
 
 § 63. Executors, Administrators, and Trustees. 
 
 In New York, Pennsylvania, and many other states the 
 statutes substantially provide that all executors, adminis- 
 trators, and trustees shall be personally liable for any and 
 all legacy and succession taxes until the same shall have 
 been paid as directed by law. 72 The commonwealth has 
 a right to be heard on the question of the appointment of 
 an administrator in respect to estates subject to the tax. 
 A claimant otherwise entitled will be refused letters of ad- 
 ministration, where it is shown that he has authorized or 
 permitted the removal of personal property of decedent 
 from the state, when the tendency of such removal is to the 
 hindrance or delay of the state in the collection of the in- 
 heritance tax, or the lessening of her security therefor. 73 
 
 Generally, in all cases where such taxes are not paid with- 
 in a year after decedent's death, such executors, administra- 
 tors, and trustees must give a bond conditioned to pay the 
 same, with interest. 74 Under the New York act of 1892, 75 
 such taxes are due and payable at the time of the trans- 
 fer, i. e. the death of decedent, excepting in case of contin- 
 
 see In re Brewer's Estate, 15 Pittsb. Law J. 435; 36 Pittsb. Law J. 
 114. As regards interest, see Appeal of Commonwealth (Fagely's 
 Estate) 128 Pa. St. 613, 18 Atl. 386. As to fees of county treas- 
 urers and their successors, see Stephen v. Com., 4 Watts, 123. 
 
 72 Appendix, I. a, e, III., VII., VIII.,— Laws N. Y. 1SS7, § 1; Laws 
 1892, c. 399, § 3; Laws Pa. 1887, p. 79, § 1; Laws Conn. 1889, c. 180, 
 §§ 1, 16; Laws Md. 18SS, p. 242, § 102. See In re Vamlerbilt's Es- 
 tate (Suit.) 10 N. Y. Supp. 239; In re Miuturn's Estate, 3 N. Y. Law 
 J. 804; In re Boyd's Estate, 4 Wkly. Notes Cas. 510; In re Cullen's 
 Estate, 26 Wkly. Notes Cas. 216. For note on "Executor's Duty as 
 to Inheritance Tax," see 29 Abb. N. C. 358. 
 
 73 Robertson's Estate (1S92) 49 Leg. Int. 190, 1 Pa. Dist. R. 317. 
 
 7 4 Appendix, I. a, e, VIII. —Laws N. Y. 1887, c. 713, § 4; Laws N. 
 Y. 1892, c. 399, § 7; Laws Md. § 117. 
 7 5 Laws 1892, c. 399, § 3. 
 
 (303)
 
 § G3 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 gent or future estates, where the fair market value cannot 
 be ascertained at the time of the transfer. In such cases 
 the tax becomes due and payable when the persons or cor- 
 porations beneficially entitled thereto shall come into actual 
 possession or enjoyment thereof. The tax shall be paid to 
 the treasurer or comptroller of the county of the surrogate 
 having jurisdiction; and said treasurer or comptroller shall 
 give, and every executor, administrator, or trustee shall 
 take, duplicate receipts from him of such payment, one of 
 which he shall immediately send to the comptroller of the 
 state, whose duty it shall be to charge the treasurer or 
 comptroller so receiving the tax with the amount thereof, 
 and to seal said receipt with the seal of his office and coun- 
 tersign the same and return it to the executor, administra- 
 tor, or trustee, whereupon it shall be a proper voucher in 
 the settlement of his accounts; but no executor, adminis- 
 trator, or trustee shall be entitled to a final accounting of 
 an estate in settlement of which a tax is due, unless he 
 shall produce a receipt so sealed and countersigned by the 
 comptroller, or a copy thereof certified by him, or unless a 
 bond shall have been filed as prescribed by the act. 76 And 
 by further provision the executor or administrator is re- 
 quired to deduct the tax from any legacy or property sub- 
 ject to the tax before paying the legacy over to the lega- 
 tee; 77 and he cannot deliver or be compelled to deliver any 
 specific legacy or property subject to the tax to any per- 
 son until he shall have collected the tax thereon. 78 
 
 Such executors have full power to collect the tax from 
 
 7 6 Laws 1892, c. 399, § 7. 
 
 77 Appendix, I. a, e, III., VII., VTII.,— Laws Md. §§ 103, 104, 114; 
 Laws Conn. § 5; Laws N. Y. 1887, c. 713, § 6; Laws N. Y. 1S92, c. 
 399, § 5; Laws Pa. § 5. 
 
 "Cases supra; In re Howe, 112 N. Y. 103, 19 N. E. 513, affirming 
 4S Hun, 235. See Com. v. Smith, 5 Pa. St. 144; In re King's Estate. 
 11 Phila. 26; Com. v. Coleman, 52 Pa, St. 473. 
 (364)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 03 
 
 the legatee, and to sell so much of the property of the de- 
 cedent as will enable them to pay the tax.™ 
 
 Where the funds in the executors hands are sufficient to 
 pay legacies and to satisfy all disputed claims, the execu- 
 tor may pay the legacies; but he should be protected in re- 
 spect to any transfer tax, interest, and penalty. He was 
 directed to pay the legacies, retaining 10 per cent, of each 
 legacy to cover the last-named items. 80 
 
 In New York the liability of the administrators, exec- 
 utors, or trustees is regulated by the statute of 1892, 81 
 providing that where they have in charge or trust any leg- 
 acy or property for distribution, subject to said tax, they 
 shall deduct the tax therefrom, or, if the legacy or prop- 
 erty be not money, they shall collect the tax thereon, upon 
 the appraised value thereof, from the legatee or person en- 
 titled to such property, and they shall not deliver, or be 
 compelled to deliver, any specific legacy or property subject 
 to tax to any person until they shall have collected the tax 
 thereon. When the executor has collected the tax upon 
 the appraised value of the property except money, his duty 
 is ended. If he pays the legacy, or any portion of it, with- 
 out first deducting the tax, he becomes personally liable to 
 the state for the amount. He must collect the tax upon 
 personal property from the assets within his hands, and 
 he is not authorized to collect it from any other source. 
 Whether a legacy is of much or little value, or whether it 
 will sell for its face or not, is a matter with which he 
 has nothing to do, and over which he has no control. He 
 must deduct the tax or collect it from the property in his 
 hands. He can maintain no action against the legatee for 
 
 79 Appendix, I. a, e, III., VII. , VIII.,— Laws N. Y. 1SS7, c. 713, § 7; 
 Laws N. Y. 1S92, c. 399, § 5; Laws Md. §§ 104, 114; Laws Ccmn. § 8. 
 so in re Perkins, 13 N. Y. Law J. 1152. 
 si Laws 1892, c. 399, § 3. 
 
 (365)
 
 -§ G3 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 the recovery of the tax on personal property. He must 
 get it from the assets in his hands, and, having done this, 
 his duty is ended. 82 
 
 Where the business of the partnership testator was con- 
 cerned in was to be continued by the executors till it could b.' 
 disposed of to advantage, and this course was essential to 
 realizing its full value, the assessment and collection of the 
 tax should be postponed until the beneficiaries come into 
 actual possession. 83 
 
 And they are permitted to receive a fair or reasonable 
 compensation under the will in lieu of commissions, which 
 compensation is exempt from taxation. 84 
 
 Where an executor renounces his commission he is not li- 
 able to taxation thereon. 85 
 
 The act of 1892 s6 provides that if a testator bequeathes 
 or devises property to one or more executors or trustees in 
 lieu of their commissions or allowances, or makes them his 
 legatees to an amount exceeding the commissions or allow- 
 ances prescribed by law for an executor or trustee, the ex- 
 cess in value of the property so bequeathed or devised, above 
 the amount of commissions or allowances prescribed by law 
 in similar cases, shall be taxable. This differs from a some- 
 what similar provision contained in the act of 1887. 87 
 
 Where the will of decedent bequeathed a certain share of 
 her estate to her executors "as extra compensation, in addi- 
 tion to the commissions allowed by law, and in satisfaction 
 of the services they have rendered me during my lifetime," 
 
 8 2 in re Weed's Estate (1894) 10 Misc. Rep. 628, 32 N. Y. Supp. 779. 
 
 8 3 in re Wheeler's Estate, 1 Misc. Rep. 450, 22 N. Y. Supp. 1075. 
 
 8 4 Appendix, I. a, III., VII.,— Laws N. Y. 1S87, c. 713, § 3; Laws Pa. 
 1887, p. 79, § 2; Laws Conn. 1S89, c. 180, § 3. 
 
 so O wings v. State, 22 Md. 110. 
 
 8G Appendix, I. e, Laws N. Y. 1S92, c. 399, § 8. 
 
 8 7 Appendix, I. e, Laws 1S87, c. 713, § 3; In re Sidell's Estate, 8 
 :N. Y. Law J. 1404. 
 (3GG)
 
 €h. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § G3 
 
 held, 88 that the bequest would be taxable to the extent it 
 exceeded a fair compensation for such services. 88 
 
 Where the bequest is uot a gratuity, but in lion of com 
 pensation for the executors' services, and the testator has 
 fixed what he deems to be a reasonable compensation, it is 
 ■exempt. It is the reasonable compensation provided in the 
 will which is the test, for otherwise a testator might be- 
 queath property to a person not exempt, in consideration 
 for insignificant services, and thus evade the tax. 90 
 
 A bequest to an executor of a certain sum over and above 
 his legal commissions and expenses is not within the act of 
 1887, 91 providing that when a bequest is made to an execu- 
 tor in lieu of commissions the excess of such devise above a 
 reasonable compensation for his services is subject to the 
 inheritance tax. 92 
 
 Where a legacy for services as executors is claimed to be 
 exempt, the state has the right to inquire into the services 
 rendered, their character, and value; and to the extent only 
 that the bequest constituted a gratuity, and not a consider- 
 ation, it will be taxable. 93 
 
 The burden is upon the executors to prove the extent and 
 value of such services. 94 
 
 Where a provision is made in the will for the executors 
 in lieu of commissions, the question of their liability to tax- 
 ation will be deferred until an accounting, when the serv- 
 ices have been rendered and the reasonableness of the com- 
 pensation determined. Where an accounting has been had, 
 if it is sought to have the question of the liability of the 
 
 ss Under Act 1892. 
 
 89 In re Sidell's Estate, 8 N. Y. Law J. (March 23, 1893) 1404. 
 so iu re Meyers, 5 N. Y. Law J. 532. 
 9i Laws 1887, e. 713, § 3. 
 
 »2 iu re Underbill's Estate (Suit.) 20 N. Y. Supp. 134. 
 93 in re Richardson, S N. Y. Law J. 1392; In re Meyers, supra; 
 In re Reilly, 3 N. Y. Law J. (July, 1890) 796. 
 
 »4 In re Underbill's Estate (Suit.) 20 N. Y. Supp. 134. 
 
 (307)
 
 § 63 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 bequests to taxation determined, another appraisement 
 must be had, where proof may be introduced on this issue. 05 
 
 Until the services have been rendered by the executor or 
 trustee, some of the cases hold, the question will be sus- 
 pended until an accounting is had. 06 
 
 These commissions and expenses of administration are 
 not deductible by the appraiser. In fact, the statute in 
 terms does not authorize the appraiser to deduct anything 
 from the fair market value of the property. 97 
 
 Under any circumstances, inasmuch as the tax is due and 
 payable at death, and the appraisement must be made as of 
 that date, or as soon thereafter as practicable, the state 
 cannot be compelled to wait the final accounting of the ex- 
 ecutor for the purpose of having it determined whether 
 his commissions are taxable as being in excess of the stat- 
 utory rate. 98 A contrary view of this subject has recently 
 been taken, holding that the appraiser and surrogate have 
 power to ascertain and deduct the commissions of executors, 
 and expenses of administration. 99 The executors are fur- 
 ther authorized, under the New York statutes, 100 to procure 
 the appointment of an appraiser, 101 for the purpose of hav- 
 
 95 In re Hope, 8 N. Y. Law J. 1164; In re Havens, 3 N. Y. Law J. 
 900. 
 
 9 6 in re Havens, 3 N. Y. Law J. 900; In re Hope, 8 N. Y. Law J. 
 1164. Executors are only legally entitled to commissions and ex- 
 penses after an accounting and decree by the surrogate. See Code 
 Civ. Proc. N. Y. § 2730, and notes to 3 Bliss' Code, p. 3200. 
 
 7 See In re Millward's Estate (Suit.) 27 N. Y. Supp. 286; In re 
 Ludlow's Estate (Sun-.) 25 N. Y. Supp. 989; In re Swift, 137 N. Y. 77, 
 32 N. E. 1096; Id., per Ransom, S., 16 N. Y. Supp. 193, affirmed in 
 19 N. Y. Supp. 292; In re Vassar, 127 N. Y. 8, 27 N. E. 394. 
 
 9 s in re Vassar and cases supra. 
 
 09 in re Gould, 13 N. Y. Law J. 7S1. 
 
 ioo Appendix, I. a, e, Laws 1887, c. 713, § 13; Laws 1892, c. 399, 
 § 11. 
 
 ioi None is necessary where the legacies are in cash, the surro- 
 gate assessing and fixing the tax upon the cash value. In re Astor, 
 (308)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 63 
 
 ing the tax fixed by the surrogate upon the value appearing 
 in the appraiser's report. It is primarily the duty of the ex- 
 ecutor to apply for an appraisement, and the power given to 
 the surrogate of his own motion to cause an appraisement 
 to be made and to fix the tax was not intended to relieve 
 personal representatives of this obligation. 102 The subject 
 of the appraisement has already been considered, 103 but 
 such executors, administrators, and all other persons inter- 
 ested in the estate are entitled to notice of the time and 
 place of making the appraisement, and of all other proceed- 
 ings under these acts. 104 
 
 That it is the duty of every personal representative, where 
 the tax is due, before paying over any legacy or share, to 
 exact from the person who is to receive it a sum sufficient 
 to pay the tax, 105 or to deduct the tax therefrom, unless the 
 will directs the same to be paid from the general estate, has 
 frequently been determined under these statutes. 106 
 
 6 Dem. Sur. 402; In re Jones, 5 Dem. Sur. 30; In re Bird's Estate 
 (Surr.) 11 N. Y. Supp. S95. Contra, In re Peek (Suit.) 9 N. Y. Supp. 
 465. And see chapter 5, § 51. 
 
 102 Frazer v. People, 6 Dem. Sur. 174. But see In re Farley, 15 N. 
 Y. St. Rep. 727. 
 
 103 Chapter 5. 
 
 104 Laws 1S92, c. 399, § 12; Coxe's Appeal, 1 Purd. Dig. (10th Ed.) 
 218; In re McPherson, 104 N. Y. 322, 323, 10 N. E. 685; In re Van- 
 derbilt's Estate (Surr.) 10 N. Y. Supp. 239; In re Lenox's Estate 
 (Surr.) 9 N. Y. Supp. 895. 
 
 105 Supra, p. 365; Sohier v. Eldridge, 103 Mass. 349; Hathaway v. 
 Fish, 13 Allen, 267; Montague v. State, 54 Md. 483; Hunter v. 
 Husted, Busb. Eq. (N. C.) 141; Attorney General v. Allen, 6 Jones' 
 Eq. (N. C.) 141; Com. v. Coleman, 52 Pa. St. 473; In re Howe, 112 
 N. Y. 103, 19 N. E. 513, affirming 48 Hun, 235. 
 
 loe Shippen v. Burd, 42 Pa. St. 461, 464; In re Holbrook's Es- 
 tate, 3 Pa. Co. Ct. R. 265, 44 Leg. Int. 1S6; In re Murphey's Estate, 
 4 Pa. Co. Ct R. 336; Com. v. Smith, 5 Pa. St. 145; Wright's Appeal, 
 38 Pa. St. 512; In re Thomson's Estate, 5 Wkly. Notes Cas. 19; Theob. 
 Wills (1st Ed.) 57. 
 
 LAW INHER. — 24 (S69)
 
 § 63 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 In New York it is held that a mode of payment of the suc- 
 cession tax prescribed by will is something with which the 
 statute is not concerned, and that manifestly, under the law, 
 that which is to be reported by the appraiser for the purpose 
 of the tax is the value of the interest passing to the legatee 
 under the will, without any deduction for any purpose or 
 under any testamentary direction. 107 
 
 Under the English law in valuing a succession to lands 
 vested in trustees, the cestui que trust cannot deduct, as 
 "necessary outgoings," reasonable expense of management 
 incurred, independently of his control, by the trustees under 
 an authority given by will. 108 
 
 But statutes making it the duty of executors to pay mean 
 domestic executors and administrators, as it is not to be 
 presumed that the legislature intended to control or impose 
 liabilities upon foreign personal representatives or foreign 
 decedents, as they are not subject to its jurisdiction. Such 
 statutes, it has been held, cannot be enforced. 109 But, as 
 we have already seen, 110 the decisions upon this point were 
 based upon the ground that there was no intention on the 
 part of the legislature to tax nonresident decedents. But, 
 where such intention exists, the state has undoubted power 
 to tax the property of foreign decedents within its jurisdic- 
 
 107 in re Swift, 137 N. Y. 77, 32 N. E. 1096. 
 
 los in re Earl Cowley, L. R. 1 Exch. 2SS. 
 
 109 Kintzing v. Hutchinson, 34 Leg. Int. 365; In re Enston, fL3 
 N. Y. 180, 21 N. E. 84, by a divided court; In re Tulane, 51 Hun, 
 213, 4 N. Y. Supp. 36. See In re Romaine, 127 N. Y. 86, 27 N. E. 
 T59. But see In re James, 144 N. Y. 6, 3S N. E. 961; In re Phipps, 
 77 Hun, 325, 28 N. Y. Supp, 330, affirmed in court of appeals with- 
 out opinion, 143 N. Y. 641, 37 N. E. 823. See an article entitled 
 "Collateral Inheritance Tax in Connection with Transfer of Stocks 
 and Loans by Foreign Executors and Administrators," by E. H. 
 Blanc, Esq., Alb. Law J.. April 16, 1892, p. 331. 
 
 no Chapter 4, § 47, subd. c. 
 (370)
 
 "Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 63 
 
 tion, and to enforce payment of the tax from persons seek- 
 ing to obtain such property. 111 
 
 So it would seem that domestic executors are not respon- 
 sible for the tax upon real property situate in another state 
 at the death of the testator, although the proceeds are sub- 
 sequently brought within the taxing state, as the succession 
 takes place to such property under the law of the place 
 where it is situate. 112 
 
 Hence the state has no power to enforce a tax in the na- 
 ture of a direct tax, and compel the executor to pay it upon 
 such foreign real estate. 113 
 
 But where the will of a resident directs that his foreign 
 real estate be converted into personalty it is so considered, 
 and the executor will be liable for the tax thereon. This 
 rule exists in Pennsylvania 114 and in England, but in New 
 York the subject of the taxation of real property through 
 the doctrine of equitable conversion has not been definitely 
 determined by the highest courts, and the question remains 
 doubtful. 115 
 
 By the Pennsylvania statute foreign executors and admin- 
 istrators are to pay the tax on stocks transferred within the 
 state, and if they default the corporation permitting the 
 transfer of such stock is liable. 116 
 
 A similar provision in the New York statute was held to 
 
 in Chapter 4, § 47, subd. b, et seq. 
 
 112 State v. Brevard, Phil. Eq. (N. C.) 141; Alvany v. Powell, 2 
 Jones, Eq. 51; Drayton's Appeal, 61 Pa. St. 172; Com. v. Coleman, 
 52 Pa. St. 468; In re Hood's Estate, 21 Pa. St. (9 Harris) 106. 
 
 us In re Bittinger's Estate (Appeal of Commonwealth) 129 Pa. St. 
 338, 18 Atl. 132. See In re Dewey's Estate, N. Y. Law J. Oct. 21, 1889. 
 
 H4 Chapter 4, § 46, subd. b. 
 
 us See chapter 4, § 46, subd. b; In re Swift, 137 N. Y. 77, 32 N. 
 E. 1096, and cases there cited; In re Curtis, 142 N. Y. 219, 36 N. E. 
 887. 
 
 us See chapter 4, § 47, subd. c; Scott, Intest. Law Pa. 1871, p. 
 547, citing In re Cook's Estate, 9 Leg. Int. 50. Contra. Kintzing 
 v. Hutchinson, 34 Leg. Int. 365. See In re Cigala, 7 Ch. Div. 351. 
 
 (371)
 
 § 63 SUBROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 be unenforceable under the law 117 passed in 1885, but un- 
 der the amended statute 11S taxing nonresident decedents* 
 estates this provision would appear to be enforceable against 
 the representatives of such decedents seeking to transfer 
 property which was within the state at the time of death. 119 
 
 There are further exceptions to the rule requiring the ex- 
 ecutor or administrator to deduct the tax, as where real 
 estate passes directly to the devisees, and in intestacy to 
 the heirs. It is then no part of the executor's or adminis- 
 trator's duty to pay the tax. Those who take the lands are 
 liable therefor. 120 
 
 So it would seem that an administrator has no right to 
 pay the tax upon real estate out of the personalty, as his 
 rights and liabilities are limited to the latter property. 121 
 
 In Pennsylvania, if it is an intestate estate^ and adminis- 
 tration is granted there, to enable the administrator to col- 
 lect the assets, he pays the tax out of the aggregate of the 
 estate before distribution. If a will be proved and admin- 
 istered, the executor deducts the collateral tax from the de- 
 vised property, unless the will otherwise directs. 122 
 
 And an executor is not liable, as such, for a collateral 
 tax due the state upon a devise of land to himself, though 
 he be liable as an individual; but his coexecutors are so 
 liable. 123 
 
 117 in re Enston, supra. 
 usAppendix, I., Laws 1887. 
 
 us See chapter 4, § 47, subds. b, c, and cases cited; In re Ro- 
 maine, In re James, and eases supra. 
 
 120 in re Boyd's Estate, 4 Wkly. Notes Cas. 510; In re Forbes' 
 Estate, 16 Phila. 356; Com. v. Coleman, 52 Pa. St. 468. 
 
 121 Com. v. Coleman, supra. 
 
 122 Com. v. Coleman, supra; Com. v. Smith, 5 Pa. St. 144; In re 
 King's Estate, 11 Phila. 26. As to duties of administrator in Penn- 
 sylvania under these statutes, see Scott, Int. Law (Pa.; 1871) p. 535. 
 
 123 state v. Brevard, Phil. Eq. (N. C.) 141. See In re Farley, 15 N. 
 Y. St. Rep. 727. 
 
 (372)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 63 
 
 But few adjudications have thus far been made in this 
 country determining the extent of the personal liability of 
 executors, administrators, or trustees for the payment of 
 the tax under the statutory provisions heretofore enumerat- 
 ed. Under the English statutes the executor or other rep- 
 resentative is held primarily liable to pay the duty, 124 and 
 where such executor fails to deduct the duty, or the legatee 
 fails to pay the amount thereof, both he and the legatee ac- 
 cepting the legacy or share 125 become personally liable for 
 the tax. 126 
 
 Where the executor is compelled to pay the duty, he has 
 an appropriate remedy over against the legatee, the ques- 
 tions relating to which subject are considered in the chapter 
 relating to the remedy and practice under these acts. 127 
 
 It is doubtful whether, under the acts of congress, the 
 executor was liable in personam for the legacy duty. 128 
 
 There was no personal liability upon the legatee unless 
 it appeared that he had custody or possession of the prop- 
 erty itself, or of the legacy, and refused to pay the tax after 
 a demand made as required by the statute. 129 
 
 On failure of the executor or administrator to pay, the tax 
 suit was maintainable against the individual in possession 
 to enforce the statutory lien. 130 So, under the succession 
 
 124 Bate t. Payne, 13 Q. B. 900. 
 
 125 Attorney General v. Munby, 3 Hurl. & N. 826; Foster v. Ley, 2 
 Bing. N. C. 276; In re McPherson, 104 N. Y. 323, 10 N. E. 6S5. 
 
 1 2 6 in re Sammon, 3 Mees. & W. 381 ; Bate v. Payne, supra ; In re 
 Wilkinson, 1 Cromp., M. & R. 142; Hales v. Freeman, 1 Brod. & B. 
 391; 15 & 16 Vict. c. 51, § 44; 36 Geo. III. c. 52, § 6; 13 & 14 Vict, 
 c. 97, § 8. 
 
 i 27 See cases supra, and post, § 64, and chapter 8, § 66. 
 
 128 u. S. v. Allen, 9 Ben. 154, Fed. Cas. No. 14,430; U. S. v. Trucks, 
 27 Fed. 541. 
 
 129 U. S. v. Trucks, supra; U. S. v. Pennsylvania Co., 27 Fed. 539; 
 12 Stat. 485, § 112. 
 
 iso U. S. v. Trucks, supra, 
 
 (373)
 
 § G3 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 duty act of congress, 131 the person beneficially interested in 
 the property was the one liable to pay the tax, and not the 
 trustee or executor in whom the legal title vested or to 
 whom a power in trust was given for the benefit of such 
 person. 132 
 
 In Pennsylvania executors and administrators are treated 
 as agents of the state, and, as such, their duty is to retain 
 the tax and pay it over to the proper officers. 133 
 
 The law of that state 134 expressly declares that the tax 
 on real estate shall remain a lien thereon until paid, and 
 that 135 the owners of all estates and all executors, adminis- 
 trators, and their sureties shall only be discharged from lia- 
 bility for the amount of such taxes the settlement of which 
 they may be charged with by having paid the same over as 
 directed by law. This liability is perpetual, and the limita- 
 tions in the act only apply to purchasers of the real es- 
 tate. 136 
 
 Where the tax is not paid within the time limited by law, 
 the penalty is properly chargeable to the administrator or 
 executor. 137 
 
 In New York it has recently been determined that a per- 
 sonal liability 138 for the tax is imposed upon executors, ad- 
 ministrators, and trustees which continues until the tax has 
 been paid. Such liability becomes fixed where the repre- 
 
 i3i 13 Stat. 285; Act June 30, 1S64, §§ 126, 127. 
 
 132 u. S. v. Tappan, 10 Ben. 284, Fed. Cas. No. 16,431. See Sohier 
 v. Eldridge, 103 Mass. 349; Hathaway v. Fish, 13 Allen, 267. 
 
 133 Seibert's Appeal (Pa. Sup.) 6 Atl. 105; Wright's Appeal, 38 
 Pa. St. 507. 
 
 134 Appendix, III., Laws Pa. 1SS7, p. 79, § 3. 
 13 5 Laws Pa. 1S87, p. 79, § 1. 
 
 136 Cullen's Estate, 26 Wkly. Notes Cas. 216; James' Appeal, 2 
 Del. Co. Rep. 164. 
 
 137 in re Palmer's Estate, 2 Del. Co. Rep. ISO. See In re Min- 
 turn's Estate, 3 N. Y. Law J. 804 
 
 138 See Laws 1892, c. 399, § 3. 
 (374)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 63 
 
 sentatives pay over legacies which are taxable without first 
 deducting the tax therefrom. They are also personally lia- 
 ble for the costs of the proceeding. 139 
 
 In considering the question in the latter state under the 
 act of 1887, Ransom, S., said: "The liability of executors 
 for the tax seems to be certain. Section 1 of the act pro- 
 vides that they shall be liable for any and all such taxes 
 until the same shall have been paid. Section 6 requires an 
 executor having in charge or trust any legacy or property 
 for distribution subject to said tax, to deduct the tax there- 
 from if it be money; and further provides that he shall not 
 be compelled to deliver any specific legacy or property sub- 
 ject to tax until he has collected the tax thereon. Section 
 8 requires the payment to the comptroller, 140 within 30 days, 
 of any such sum retained for the tax, and further provides 
 that the executor shall not be entitled to credit in his ac- 
 counts, nor discharged from liabilitv for such tax until he 
 shall produce a receipt sealed and countersigned by the 
 comptroller." 141 But it was held in that case that certain 
 appraisement proceedings begun by the executors to have 
 the tax assessed and fixed under the statute to which nei- 
 ther the state nor some of the principal legatees were par- 
 ties was, nevertheless, under the circumstances of that case, 
 binding upon the state so far as the executors were con- 
 cerned, and relieved them from personal liability. In view 
 of the express language of the statute, quoted from the opin- 
 ion, it is doubtful whether this result is sound or can be 
 maintained, for the reason that neither the state nor some 
 of the legatees had any notice or were parties to the pro- 
 ceeding, hence they were not bound by the report of the ap- 
 
 139 In re Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 239; In re 
 Minturn's Estate, 3 N. Y. Law J. S04. 
 
 140 Or county treasurer. 
 
 1*1 In re Vanderbilt's Estate, supra. 
 
 (375)
 
 § 63 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 praiser or by the decree of the surrogate thereon. It would 
 seem that nothing relieves from a tax excepting payment or 
 a decree that is binding upon the state. 142 But in Re 
 Wolfe 148 the court held, under the acts of 1885 and 1887, 
 that a decree of the surrogate exempting certain charitable 
 institutions was binding upon the state, although neither it 
 nor any state official had notice of the proceeding; that the 
 statute did not intend they should have any notice. But 
 by the act of 1892 144 it is now required that notice shall be 
 served upon all interested parties, including the county 
 treasurer or comptroller, as representing the state. 
 
 It has been held that the question of the executor's lia- 
 bility cannot be determined upon his own motion, and that 
 the only method under the statute by which such liability 
 can be determined is by proceedings instituted by the dis- 
 trict attorney on behalf of the state to compel payment of 
 the tax. 145 
 
 But a receipt "in full" for the tax given by the register by 
 mutual mistake justifies the executor in paying the legacies 
 without deduction, and he cannot suffer injury therefor 
 where he has acted in good faith. 146 
 
 But where the receipt is simply for the amount of money 
 fixed by the court, and does not express the idea that the 
 money was received in satisfaction, discharge, or payment of 
 the decree, or of the amount of the tax claimed by the state, 
 
 1*2 in re McPherson, 104 N. Y. 323, 10 N. E. 685; In re Lenox, 9 
 N. Y. Supp. 895; Succession of Dupuy, 33 La. Ann. 261; Appeal of 
 Commonwealth (Fagely's Estate) 128 Pa. St. 603, 613, 18 Atl. 386. 
 
 143 137 n. Y. 205, 33 N. E. 156, distinguished in Re Smith's Estate 
 (Surr.) 23 N. Y. Supp. 762. 
 
 144 Laws 1892, c. 399, §§ 11, 12. 
 
 145 in re Farley, 15 N. Y. St. Rep. 727; In re Arnett, 49 Hun, 599, 
 2 N. Y. Supp. 428. 
 
 146 in re Brewer's Estate, 15 Tittsb. Leg. J. (N. S.) 345; 16 Pittsb. 
 Leg. J. (X. S.) 114; Com. v. Freedley, 21 Pa. St. 33. 
 
 (37G)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 64 
 
 it will not act as an estoppel, so as to prevent the state from 
 recovering interest legally due; 14T and a receipt is no pro- 
 tection to the executor, or other representative, as against 
 the state, for taxes due, where they were, by reason of mis- 
 take or fraud, omitted to be paid. 148 
 
 The liability under these statutes, of the personal repre- 
 sentatives, and of the legatee, where he accepts the legacy or 
 share, 149 is perpetual, and the provision of the statute limit- 
 ing the lien of the tax to a certain period only applies to pur- 
 chasers of the realty, and not to such representatives or 
 legatees. 150 
 
 § 64. Liability of Executors, Administrators, 
 Trustees, Heirs, and Legatees inter Se. m 
 
 Except where some personal or fixed liability is incurred 
 by the executor, administrator, or trustee, pursuant to stat- 
 
 1*7 in re Fagely's Estate, supra. 
 
 14 8 in re Astor, 6 Dem. Sur. 402; In re Brewer's Estate, supra; 
 In re Bittinger's Estate, 129 Pa. St. 338, 18 Atl. 132; In re Vander- 
 bilt's Estate, supra; In re Keenan (Surr.) 5 N. Y. Supp. 200; In re 
 Smith's Estate (Surr.) 23 N. Y. Supp. 762. 
 
 149 Montague v. State, 54 Md. 483; In re McPherson, 104 N. Y. 
 323, 10 N. E. 685; In re Vanderbilt's Estate (Sun-.) 10 N. Y. Supp. 
 239; U. S. v. Truck's Adm'r, 27 Fed. 541; U. S. v. Tappan, 10 Ben. 
 284, Fed. Cas. No. 16,431; Sohier v. Eldridge, 103 Mass. 349; Hath- 
 away v. Fish, 13 Allen, 267. See Torrey v. Willard, 55 Hun, 78, 8 N. 
 Y. Supp. 392; Seibert's Appeal (Pa. Sup.) 6 Atl. 105. 
 
 loo Mellon's Appeal, 114 Pa. St. 572, 8 Atl. 183; In re Cullen's 
 Estate, 26 Wkly. Notes Cas. 216; James' Appeal, 2 Del. Co. Rep. 
 164. As to when, under the English law, the purchaser of real es- 
 tate, under agreement to buy free from incumbrances, becomes liable 
 to pay succession duty, as between himself and the vendor, see 
 Cooper v. Trewby, 28 Beav. 194; In re Langham, 60 Law J. Ch. 110; 
 Dugdale v. Meadows, L. R. 9 Eq. 212. 
 
 i5i As to when legacies in payment of debts are not liable to tax, 
 see chapter 6, § 61. 
 
 (377)
 
 § 64 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 ute, in refusing or neglecting to pay the tax when due and 
 payable, 152 it is payable primarily out of the taxable interest 
 by the persons taking the property, or who are beneficially 
 interested therein, and not out of the general estate. 1 5i 
 Under the New York statute of 1892, 154 the tax is not upon 
 the share of the legatee, as formerly, 155 but is upon the ag- 
 gregate estate "of the decedent passing to persons not ex- 
 empt." 156 The same rule prevails in Pennsylvania. 157 
 
 But, in construing wills, questions often arise, under these 
 statutes, between executors, trustees, and legatees inter se, 
 as to whether decedent intended that the legacy or devise 
 should be "free" or "clear" of the tax; in other words, 
 whether the tax should be borne by the testator's general 
 estate, and thus paid by the executor or trustee without de- 
 duction from the legacy, or solely out of the legatee's in- 
 terest. 158 
 
 There is no doubt that a testator possesses the general 
 power to relieve the legatees from the payment of the tax by 
 
 162 See section 63, supra. 
 
 153 Chapter 3, § 10. 
 
 is* Laws N. Y. 1892, c. 399. 
 
 155 in re Cager's Will, 111 N. Y. 343, 18 N. E. 866; In re Howe, 
 112 N.Y. 100, 19 N. E. 513. 
 
 156 in re Hoffman's Estate, 143 N. Y. 327, 38 N. E. 311. But see 
 In re Sterling's Estate (Surr.; 1894) 30 N. Y. Supp. 3S5; In re Skill- 
 man's Estate (Surr.) 32 N. Y. Supp. 780. 
 
 is? in ve Howell's Estate (Appeal of Philadelphia Protestant 
 Episcopal Mission, 1892) 147 Pa. St. 164, 23 Atl. 403; In re Mister's 
 Estate (1891) 10 Pa. Co. Ct. R. 409, with note by S. H. Thomas, Esq. 
 See, also, note by C. B. Penrose, Esq., 49 Leg. Int. 26. Contra, Com. 
 v. Kerchner, 6 Law Rev. SOS; Evans' Estate (1891) 8 Law Rev. 321. 
 
 158 Hunter v. Husted, Busb. Eq. 141; Attorney General v. Allen, 6 
 Jones, Eq. 144; Shippen v. Bui'd, 42 Pa. St. 461; Thomson's Estate, 
 5 Wkly. Notes Cas. 19; Horter's Estate, 1 Pears. 424; Murphy's 
 Estate, 4 Parker, Cr. R. 336; Holbrook's Estate, 3 Parker, Cr. R. 
 263; Com. v. Smith, 5 Pa. St. 145; Wright's Appeal, 58 Pa. St. 512; 
 Sohier v. Eldridge, supra; Hathaway v. Fish, supra; In re Wilkin- 
 (378)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 64 
 
 throwing it on the residue of the estate where it is sufficient 
 to make payment, but an intention that a devise shall he 
 "free" of the tax, as between the estate and the devisee, must 
 clearly appear. A mere declaration that it is to be clear 
 of all charges and incumbrances, or other legal demands, 
 is not sufficient. 159 
 
 Where the legacy or annuity is expressly relieved, how- 
 ever, by the terms of the will, from the tax, the estate or 
 executor will be liable therefor. 160 
 
 As where the legacy is of a clear or annual net sum, to be 
 paid the annuitant out of the fund set apart, this direction 
 is sufficient to make the estate liable, and relieves the an- 
 nuity. 101 
 
 The provisions of a will exempting legacies from collateral 
 inheritance tax, and making such tax payable by the exec- 
 utors, applies as well to legacies given by a subsequent codi- 
 cil as to those contained in the will. 162 
 
 In England, where the will clearly releases the legacy from 
 the duty, it must be paid by the executors. 163 
 
 Under the New York statutes the rule seems to be differ- 
 ent. A clause in the will of decedent directed that the 
 amount of the tax upon legacies and devises should be 
 
 son, 1 Cromp., M. & R. 160; In re Howe, 112 N. Y. 103, 19 N. E. 513; 
 In re Sherwell, 125 N. Y. 376, 26 N. E. 464; In re Cager's Will, 111 
 N. Y. 343, 18 N. E. 866, where the court say that the tax is upon 
 the individual. See Com. v. Kerchner, 24 Wkly. Notes Cas. 260. 
 
 159 In re Forbes' Estate, 16 Phila. 356; In re Horter's Estate, supra; 
 but see In re Swift, 137 N. Y. S7, 32 N. E. 1096. 
 
 leo in re King's Estate, 11 Phila. 30. 
 
 i6i In re Bispham's Estate, 46 Leg. Int. 98. 
 
 162 in re Cunimings' Estate (1892) 30 Wkly. Notes Cas. 430, 12 
 Pa. Co. Ct. R. 45. 
 
 163 Barksdale v. Gilliat, 1 Swanst. 562; Bailey v. Boult, 21 Law J. 
 Ch. 277; Fisher v. Brierley, 30 Beav. 267; Foster v. Ley, 2 Bing. N. 
 C. 269. See, also, cases cited in Theob. Wills (3d Ed.) pp. 136-143. 
 
 (379)
 
 § 64 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 paid as expenses of administration. Held, that no deduc- 
 tion should be made, from the value of the residuary estate, 
 of the amount of the tax to be assessed upon its value, or 
 upon the prior legacies; that a mode of payment of the tax 
 prescribed by will is something with which the statute is 
 not concerned. 164 
 
 Where, however, the will provided that the devisees 
 should pay "all taxes, ground rents, and other necessary 
 and legal charges upon the real estate devised to them," 
 and that "not wishing such gifts, devises, etc., to be inter- 
 fered with or lessened," all legitimate charges were to be 
 paid by his executors, it was held that the devisees, and not 
 the estate, were liable. 185 
 
 And where the will bequeathed a fund to trustees to re- 
 ceive the collected income and produce thereof, and, after 
 deducting all proper costs, to pay the residue of such in- 
 come to the beneficiary, held, that the duties were a charge 
 upon the latter's income. 166 
 
 But where a married woman had a general power of ap- 
 pointment, and by will appointed the fund and nominated 
 executors of her will, they, and not the trustees of the in- 
 strument by "which the power is created, were held to be 
 the proper persons to administer the trust fund, and the 
 executors were accordingly held liable for the legacy 
 duty. 167 
 
 is* in re Swift (1893) 137 N. Y. 87, 32 N. E. 1096; Earl Cowley, 
 L. R. 1 Ex. Oh. 288. As to when succession taxes are chargeable 
 against the residuary legatees, etc., see In re Van Beuren, 4 N. Y. 
 Law J. 1600. As to when it is error, on final settlement of ex- 
 ecutors' accounts, to direct part of the estate to be held for the 
 purpose of paying legacy taxes and expenses of administration, see 
 In re Lockwood (1892) 63 Hun, 630, 17 N. Y. Supp. 771. 
 
 ic5 Shippen v. Burd, supra. 
 
 lee Sohier v. Eldridge, supra; Hathaway v. Fish, supra. 
 
 let in re Philbrick's Trust, 13 Wkly. Hep. 570. See, also, chapter 
 6, § 61. 
 (380)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 64 
 
 Under the laws of New York 188 providing that an heir 
 or devisee shall, out of his own property, satisfy any mort- 
 gage to which the land descended or devised is subject, un- 
 less the will directs otherwise, the personal estate of a tes- 
 tator who devised land subject to mortgage is not liable 
 for the mortgage debt, to the exoneration of the land, un- 
 less the will so provides; and the amount of the mortgage 
 will, therefore, be deducted from the value of the land, in 
 assessing the transfer tax. 169 
 
 Expenditures by trustees directed to invest moneys in 
 lands, in building a mansion house, cannot be deducted 
 from the amount of the estate subject to legacy duty under 
 the English statute making any persons who would become 
 entitled to an estate in the lands purchased liable to such 
 duty, if they become so entitled before the moneys are ac- 
 tually applied. 170 
 
 Where real estate passes directly to the devisees, and 
 in intestacy to the heirs, it is no part of the executor's or ad- 
 ministrator's duty to pay the tax. Those who take the 
 lands are liable therefor. 171 
 
 Where the executor or other personal representative has 
 been compelled to pay the tax after he has paid the legacy 
 in full to the heir or legatee without deduction, the ques- 
 tion has arisen as to whether such heir or legatee assumes 
 any liability to the executor for the amount of the tax so 
 paid for the legatee's benefit. In such cases the legatees 
 have been held liable, in England, 172 to the executors in 
 
 168 1 Rev. St p. 749, § 4. 
 
 169 in re Kene (1894) 8 Misc. Rep. 102, 29 N. Y. Supp. 1078. 
 
 170 Macfarlane v. Lord Advocate (1894) 6 Reports, 291. 
 
 ifi See section 63, supra; In re Boyd's Estate, 4 Wkly. Notes Cas. 
 510; In re Forbes' Estate, 16 Phila. 356; Com. v. Coleman, 52 Pa. 
 St. 468. 
 
 172 See section 63, supra, chapter 8, § 66. 
 
 (381)
 
 § 64 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 actions at law, 173 and the same rule would seem to exist, 
 or at least to be applicable, under the statutes in this coun- 
 try, 174 if not at common law, as for money paid by the ex- 
 ecutor by compulsion of law for the benefit of the lega- 
 tee. 175 But it is doubtful whether, in New York, the sur- 
 rogate's court has jurisdiction over a proceeding of this 
 character, or can compel a legatee to repay. The remedy 
 would seem to be at law. 176 
 
 Where an executor has paid the tax upon a legacy to 
 an infant, with the knowledge and consent of the latter's 
 general guardian, such executor cannot, on a subsequent 
 accounting, be held liable by a guardian ad litem for the 
 amount so paid, upon the ground of an alleged exemp- 
 tion. 177 
 
 Under general law, a tax collector who has become le- 
 gally liable to account and pay to the public treasury a tax 
 which he failed to collect from the person assessed, and 
 who has been accordingly compelled to pay it, may recover 
 it from the latter as money paid to his use under compul- 
 sion of law. 178 
 
 Where decedent's executor destroyed the will and never 
 
 its Foster v. Ley, supra; Bate v. Payne, 13 Q. B. 900; Hales v. 
 Freeman, 1 Brod. & B. 391. See In re Sammon, 3 Mees. & W. 381; 
 Greville v. Greville, 27 Beav. 596; Turner v. Martin, 7 De Gex, M. 
 & G. 429. 
 
 17 4 See Hunter v. Husted, Busb. Bq. 141; Attorney General v. 
 Allen, 6 Jones, Eq. 144; In re Boyd's Estate, 4 Wkly. Notes Cas. 
 510; In re Forbes' Estate, 16 Phila. 356; Montague v. State, 54 Md. 
 486; In re Vanderbilt's Estate (Surr.) 10 N. Y. Supp. 239. 
 
 17 5 See, generally, In re Underbill, 117 N. Y. 471, 22 N. E. 1120; 
 In re Keeeb, 7 N. Y. Supp. 331, affirmed 57 Hun, 588, 11 N. Y. Supp. 
 2(i.j; Seibert's Appeal (Pa. Sup.) 6 Atl. 105; Large v. McClain (Pa. 
 Sup.) 7 Atl. 101. 
 
 17 6 See In re Underbill, supra; In re Keecb, supra, 
 
 177 Farquharson v. Nugent, 6 Dem. Sur. 296. 
 
 17 8 Ward v. Riebardson, 1 Abb. N. C. 449. 
 (382)
 
 €h. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 65 
 
 qualified, but, after the testator's death, obtained all the 
 personal property of decedent and invested it in his own 
 name in speculative property, and, when then threatened by 
 a legatee with criminal prosecution, paid over to such leg- 
 atee the amount of the legacy out of his individual properly, 
 no part of which had ever belonged to the testator, held, 
 that the legatee was not liable to pay transfer tax on the 
 amount of her legacy. 179 
 
 Where, in a proceeding under the act, the only proof be- 
 fore the surrogate consisted of an affidavit of decedent's 
 daughter, sole legatee and executrix, in which she alleged 
 there were debts against the estate consisting of prom- 
 issory notes made by decedent for money alleged to be 
 loaned by the daughter to him, held, that the executrix was 
 incompetent, under the New York statute (Code, § 829), 
 to testify in her own behalf in such proceeding as to per- 
 sonal transactions with decedent 180 
 
 § 65. Compromises between Public Officers, Ex- 
 ecutors, and Legatees. 
 
 Under a recent statute in New York 181 the comptroller of 
 the state is authorized, with the approval of the attorney 
 general and a justice of the supreme court of the judicial 
 district in which the former owner resided, to compromise 
 and settle the amount of such tax in any case where contro- 
 versies have arisen or may arise as to the relationship of 
 the beneficiaries to the former owner thereof. 
 
 The English law is broader. The tax may be compounded 
 with the government, where the succession is of such a na- 
 ture, or so disposed or circumstanced, that the value thereof 
 
 179 in re Weed's Estate (1894) 10 Misc. Rep. 628, 32 N. Y. Supp. 777. 
 iso in re Mann, 11 N. Y. Law J. 10S2. See In re Hunt, 12 N. Y. 
 Law J. 642. 
 isi Laws 1895, c. 378, amending Laws 1892, c. 399, § 15. 
 
 (383)
 
 § 65 SURROGATES, DISTRICT ATTORNEYS, ETC. [Ch. 7 
 
 shall not be fairly ascertainable under the act, or where, 
 from the complication of circumstances affecting the value, 
 assessment, or recovery of duty, it is deemed expedient to 
 compound, etc. 182 
 
 Where money is received by claimants under a deceased 
 person's will, by reason of a compromise contract between 
 them and the executors, sanctioned by a court having juris- 
 diction, the money so received does not fall within the cate- 
 gory of legacies and distributive shares in intestate estates 
 which are subject to federal revenue taxes. 183 
 
 But, under the English statute, where the testator direct- 
 ed a certain estate to be sold, and the proceeds to be divided 
 between his two sons, but they preferred to take the prop- 
 erty themselves under an amicable arrangement, the duty 
 was imposed upon the value of the property, although the 
 division of the estate was not in strict pursuance of the 
 decedent's will. 184 
 
 The tax is not payable on a sum of money which the 
 legatees, who were all collaterals, authorized the executor 
 to pay to a disinherited son of the testator, in pursuance of 
 a compromise whereby the son's caveat is withdrawn and 
 the will admitted to probate. 185 
 
 Hanna, P. J., said: "The question now arises whether 
 the legatees are liable, not only to the collateral tax upon 
 the balance of their legacies, but also to that upon the 
 amount they agreed to pay caveator in compromise and set- 
 tlement. We have reached the conclusion that under the 
 
 182 16 & 17 Vict. c. 51, § 39. 
 
 183 page v. Rives, 1 Hughes, 297, Fed. Cas. No. 10,iJGG. But see 
 Brune v. Smith, 13 Int. Rev. Rec. 54, Fed. Cas. No. 2,053. 
 
 184 Attorney General v. Holford, 1 Price, 426; Ex parte Sitwell, 
 59 Law T. 539. 
 
 185 in re Pepper's Estate (Commonwealth's Appeal, 1894) 159 Pa. 
 St. 509, 28 Atl. 353; 50 Leg. Int. 284, 13 Pa. Co. Ct. R. 517; 2 Pa. 
 Dist. R. 211. 
 
 (384)
 
 Ch. 7] SURROGATES, DISTRICT ATTORNEYS, ETC. § 65 
 
 most favorable construction of the act, so far as respects the 
 contention on behalf of the commonwealth, they are not so 
 liable, and for the reason that the amount paid the caveator 
 was never received by them as legatees, and, under the act, 
 it is only so much of the estate which actually passes to 
 them by virtue of the will that is liable to the tax. It will 
 readily be seen if the contest instituted by the caveatoi- 
 had been successful he would be entitled, under the in- 
 testate law, to the entire estate, and freed from the tax. 
 But instead of further' litigation he accepted a portion of 
 the estate, relinquished his claim to the balance, and thus, 
 of course, reduced the amount passing to the legatees; and 
 in fact, to the extent of the amount he recovered the will 
 is a nullity." 
 
 The tax cannot be imposed upon moneys paid to extin- 
 guish the title of persons claiming adversely to decedent, 
 or upon property surrendered by way of compromise to per- 
 sons so claiming. So held where testatrix devised her es- 
 tate to a friend, who died pending a contest over the same. 
 The heirs of the devisee compromised with the contestants 
 and surrendered a portion of the estate to them, which was 
 held not liable to taxation. 186 
 
 Testator bequeathed all his interest in a limited partner- 
 ship association to his brothers. His widow elected to take 
 against his will, whereupon the executors and legatees paid 
 to her a certain sum in full of all her claims against the 
 estate. It was held that this did not affect the right of the 
 state to tax the full value of the deceased partner's inter- 
 est. 187 
 
 186 in re Kerr's Estate (Commonwealth's Appeal, 1894) 159 Pa. St. 
 512, 28 Atl. 354; 13 Pa. Co. Ct. R. 431; 50 Leg. Int. 222. 
 
 187 in re Small's Estate (Commonwealth's Appeal, 1892) 151 Pa. 
 St. 1, 25 Atl. 23. 
 
 LAW INHER. — 25 (385)
 
 § 66 REMEDY AND PRACTICE. £Ch. 8 
 
 CHAPTEE VIII. 
 
 REMEDY AND PRACTICE. 
 
 8 66. Nature of Remedy and Actions and Proceedings Thereunda" 
 
 67. Lien of the Tax, and Its Effect— Statute of Limitations. 
 
 68. Interest and Penalties for Nonpayment of Tax. 
 
 69. Retroactive, Amendatory, and Repealing Statutes. 
 
 § 66. Nature of Remedy and Actions and Proceed- 
 ings Thereunder. 1 
 
 It becomes important, under statutes imposing collateral 
 inheritance, legacy, and succession taxes, to determine not 
 only the proper remedy and practice to be pursued in pro- 
 ceedings to enforce the liability of person or property to the 
 tax, but also the rights and obligations of different parties 
 to the proceeding, or who are liable to be affected thereby. 
 Some of the questions upon this subject have received par- 
 tial consideration in the preceding chapter. 
 
 Where the proceeding to collect a tax is of a statutory 
 nature, the remedy pointed out by the statute is generally 
 exclusive, and must be strictly followed, 2 but in the absence 
 
 i For forms and practice under New York statute, see Appendix; 
 In re Astor, 6 Dem. Sur. 402, 419, 2 Lawy. Rep. Ann. 825, note; 19 
 Abb. N. C. 234, note. 
 
 2 See U. S. v. Pennsylvania Co., 27 Fed. 540; U. S. v. Trucks' 
 Adm'r, Id. 541; In re McPherson, 104 N. Y. 323, 324, 10 N. E. 685; 
 In re Wolfe, 137 N. Y. 205, 33 N. E. 156; Weston v. Goodrich (Sup.) 
 33 N. Y. Supp. 3S2; In re Hall's Estate (Sup.) 7 N. Y. Supp. 595; In 
 re Howard, 54 Hun, 305, 7 N. Y. Supp. 594; Anderson v. Anderson, 
 112 N. Y. 104, 113, 19 N. E. 427; Central Trust Co. v. New York 
 City & N. R. Co., 47 Hun, 587; Id.. 110 N. Y. 250, 18 N. E. 92; In re 
 New York, L. E. & W. R. Co., 110 N. Y. 374, 18 N. E. 120. When a 
 statute gives a new power, and at the same time provides a means 
 for enforcing it, those who claim the power can execute it in no other 
 (386)
 
 Ch. 8] REMEDY AND PRACTICE. § 66 
 
 of any designated method of procedure in the statute, it 
 seems that the ordinary or common-law methods may be 
 pursued. 3 
 
 Under general tax laws, where an assessment is merely 
 erroneous, and the payment of the tax levied thereon has 
 not been compulsory, the remedy by certiorari to correct the 
 assessment designated by statute is exclusive. Where, how- 
 ever, the assessment is illegal and void, this remedy is not 
 exclusive, and an action at law may be maintained to re- 
 cover any tax paid under compulsion upon such void and 
 illegal assessment. 4 
 
 The claim of the state for taxes is not suspended until the 
 estate of a deceased person is administered, or bound to 
 share with that of creditors in the distribution of the pro- 
 ceeds. The state may enforce it to the exclusion of all 
 other creditors. 5 
 
 Where the statute makes the tax due and payable at de- 
 cedent's death, or at any definite time, the state is not bound 
 to wait the final accounting of the executor. 6 
 
 Again, as the collateral inheritance or succession tax is not 
 always imposed upon the entire estate of the decedent, 7 
 but as a rule upon the specific taxable interest or property 
 passing either by will or intestacy, 8 the proceeding to assess 
 
 way. This rule applies to all taxes, public and private. Andover & 
 M. Turnpike Corp. v. Gould, 6 Mass. 40, 44. 
 
 3 U. S. v. Trucks' Adm'r, supra; Montague v. State, 54 Md. 483; Tor- 
 rey v. Willard (Sup.) 8 N. Y. Supp. 392. 
 
 * United States Trust Go. v. Mayor, etc., of City of New York, 77 
 Hun, 1S2, 28 N. Y. Supp. 344. 
 
 e Dunlap v. Gallatin Co., 15 111. 7; Hil. Tax'n, § 66. 
 
 e In re Vassar, 127 N. Y. 8, 27 N. E. 395. 
 
 7 Under the laws of New York and Pennsylvania, the property tax- 
 able is the estate of the decedent, and not the share of the individual 
 legatee. See In re Hoffman's Estate, 143 N. Y. 333, 38 N. E. 311; 
 In re Hall's Estate (Sup.) 34 N. Y. Supp. 616. See chapter 3, § 41. 
 
 s See chapter 2, § 9; chapter 3, § 41. 
 
 (387)
 
 § 66 REMEDY AND PRACTICE. [Ch. 8 
 
 and collect the tax, though, as we have seen, frequently in- 
 volving a personal liability upon the part of the executor, 
 administrator, trustee, or legatee, is more strictly analogous 
 to an action in rem, as being against the taxable estate or 
 share to satisfy the tax out of the specific property in the 
 hands of the persons having the custody or possession there- 
 of. 
 
 Such were the rulings under the succession acts of con- 
 gress, and it was accordingly held that no personal liabil- 
 ity existed upon the part of the executor as such, 9 though 
 he would appear to have been so liable under the legacy act 
 of congress. 10 
 
 Hence, under the acts of congress mentioned, a common 
 law remedy to recover the tax could not be maintained 
 against the executors, the remedy afforded by the statute 
 being solely to enforce the lien 1X against the beneficiary 
 who took the legacy. 
 
 "The statute," 12 says Butler, J., 18 "provided a specific 
 method for collecting the tax on legacies and successions. 
 The tax was made a lien on all the decedent's property, and 
 the administrator or executor directed to pay to the col- 
 lector. In case he did not, the statute provided that the 
 lien should be enforced by suit against anyone having 
 possession, and the property be sold under the judgment. 
 There is no provision for suit against the executor or admin- 
 istrator, 'and while such suit might be sustained for the 
 failure to pay in the absence of express provision for enfor- 
 
 9 U. S. v. Allen, 9 Ben. 154, Fed. Cas. No. 14,430, citing 12 Stat. 485, 
 § 412; U. S. v. Trucks, supra; U. S. v. Pennsylvania Co., supra; U. S. 
 v. Tappan, 10 Ben. 284, Fed. Cas. No. 16,431; Sohier v. Eldridge, 103 
 Mass. 345. Succession of Dupuy, 33 La. Ann. 258. 
 
 io U. S. v. Tappan, supra. 
 
 ii U. S. v. Trucks, 27 Fed. 541; U. S. v. Pennsylvania Co., Id. 539. 
 And see Sobier v. Eldridge, supra. 
 
 12 Act June 30, 1864. 
 
 is U. S. v. Trucks, supra. 
 (388)
 
 Ch. S] REMEDY AND PRACTICE. § 66 
 
 cing the lien under existing circumstances it cannot' The 
 direction is very specific. On the administrator's or execu- 
 tor's failure to pay, it provides that suit shall be brought 
 against the individual in possession to enforce the lien. The 
 remedy is an ample one, and there is nothing to support an 
 implication that any other was contemplated, and no other 
 remedy can be resorted to." But where there is a personal 
 liability upon the executor or legatee and a right in rem 
 against the property is also given, either remedy it would 
 seem may be adopted. Under the Louisiana statute, where 
 the property liable to the tax was sold in partition and the 
 proceeds were in the hands of the executor ready for distri- 
 bution, it was not necessary to bring direct proceedings 
 against the property sold to recover the tax, but claim made 
 in the partition proceedings was sufficient. 14 
 
 In North Carolina the proper method of recovering the 
 tax is by bill in equity in the nature of an information in 
 the name of the attorney general, 15 and in Maryland, in ad- 
 dition to the liability of the executor, the state may main- 
 tain an action of assumpsit to recover the tax against a 
 legatee to whom the executor has paid the legacy without 
 deducting the tax therefrom. 16 
 
 Under the English statutes, however, a strict liability in 
 personam for the payment of the tax is imposed upon the 
 
 I* Succession of Dupuy, supra. 
 
 is Attorney General v. Pierce, 6 Jones, Eq. 240. As to testing con- 
 stitutionality of such statutes by injunction, see Eyre v. Jacob, 14 
 Grat. 424; by writ of prohibition to restrain the enforcement of the 
 tax on the ground that the act is unconstitutional, see Chainbe v. 
 Durfee (1894) 100 Mich. 112, 58 N. W. 661. See, also, Mearkle v. 
 Hennepin Co. (1S90) 44 Minn. 546, 47 N. W. 165, by mandamus. 
 State v. Ferris, 9 Ohio Cir. Ct. R. 299, affirmed 41 N. E. 579. 
 
 is Montague v. State, 54 Md. 4S3. See Torrey v. Willard, 55 Hun, 
 78, S N. Y. Supp. 392; Seibert's Appeal (Pa. Sup.) 6 Atl. 105; In re 
 Jones, 5 Dem. Sur. 36. 
 
 (389)
 
 § 66 REMEDY AND PRACTICE. [Ch. 8 
 
 executor, administrator, or trustee, 17 and where such per- 
 sons fail to pay the duty they may be personally sued there- 
 for as upon a debt due the crown. 18 
 
 So, under the Pennsylvania statute, executors, adminis- 
 trators, or trustees are, for the purpose of the tax, deemed 
 agents of the state. 19 and the proceeding to collect the tax 
 is held to be something more than a proceeding in rem, as 
 the register may by bill filed in the orphans' court compel 
 payment from such personal representatives who have neg- 
 lected to account for the tax and for the interest due there- 
 on. 20 
 
 Where tax accrues, and the executors or parties in pos- 
 session neglect to pay the tax within a year after decedent's 
 death, it is proper for the commonwealth to invoke the rem- 
 edy provided by statute, 21 and to proceed, by bill or petition 
 in the orphans' court, to enforce payment of the tax. 22 
 
 Where the proper parties are brought before it, the or- 
 phans' court has the jurisdiction to compel parties liable to 
 thetax to furnish the register of willswith all facts necessary 
 for the assessment of the tax, and to enforce its payment 
 when duly assessed. 23 
 
 So, under the New York statute, the proceeding partakes 
 both of the nature of a personal liability upon the part of 
 
 it See chapter 7, §§ 63, 64. 
 
 is in re Sammon, 3 Mees. & W. 381; Bate v. Payne, 13 Q. B. 900; 
 In re Wilkinson, 1 Cramp., M. & R. 142; 15 & 16 Vict. c. 51, § 44; 
 36 Geo. III. c. 52, § 6; 13 & 14 Vict. c. 97, § 8. 
 
 is Seibert's Appeal (Pa. Sup.) 6 Atl. 105. 
 
 20 Chapter 7, p. 362; In re Cullen's Estate, 26 Wkly. Notes Cas. 
 216; James' Appeal, 2 Deb. Co. Rep. 164; Bank's Estate, 5 Pa. Co. 
 Ct. R. 616. 
 
 si Laws Pa. 1887, § 15. 
 
 22 in re Maris' Estate (1893) 50 Leg. Int. 458, 14 Pa. Co. Ct. R. 171, 
 and 3 Pa. Dist. R. 33. 
 
 23 in re Maris' Estate, supra. 
 
 (390)
 
 Ch. 8] REMEDY AND PRACTICE. § 60 
 
 the executor 24 and of an action in rem against the prop- 
 erty; and in that state the executor or administrator is held 
 personally liable for the payment of the tax, where he has 
 paid over the legacies without deduction, and for the costs 
 of the proceeding to collect the tax. 25 
 
 Such executor or administrator is also liable to contempt 
 or attachment proceedings for the nonpayment of a tax 
 directed to be paid by decree of the surrogate. 28 
 
 Whether, in that state, the county treasurer or comp- 
 troller can maintain an action at law directly against the 
 executor or administrator for taxes due, has not been de- 
 termined; 2T but it would seem that the remedy which has 
 been designated by the statute, to wit, through proceedings 
 to be begun by the district attorney in the surrogate's court, 
 would have to be followed. 28 
 
 Under the act of 1892, 29 the county treasurer or comp- 
 troller may apply for the appointment of an appraiser to fix 
 the value of the property; and, where application is made 
 by others, notice must be given to the county treasurer. 30 
 
 In England, where the executor or administrator has 
 been compelled to pay the tax, he is afforded a remedy over 
 
 24 Laws 1892, c. 399, §§ 3, 5. 
 
 25 in re Clark, 1 Con. Sur. 431, 5 N. Y. Supp. 199; In re Vanderbilt's 
 Estate (Suit.) 10 N. Y. Supp. 239; In re Minturn's Estate, 3 N. Y. 
 Law J. S04. 
 
 26 in re Prout, 3 N. Y. Supp. S31; Code Civ. Proc. 2555; In re 
 McPherson, 104 N. Y. 323, 10 N. E. 685; In re Gilman's Estate, G 
 Dem. Sur. 35S; In re Pelton's Estate, 10 N. Y. Supp. 642; In re 
 Cockey, 8 N. Y. Law J. 1507. 
 
 27 In re Jones, 5 Dem. Sur. 36; Torrey v. Willard, S N. Y. Supp. 
 392. 
 
 2 8 But see Montague v. State, supra. 
 
 29 Appendix, I. e, Laws 1892, c. 399, § 11. 
 
 so As to whether in proceedings by the district attorney he ruay 
 be compelled to elect to hold the executor personally or the legatee, 
 see In re Cockey, 8 N. Y. Law J. p. 1507. 
 
 (391)
 
 § G6 REMEDY AND PRACTICE. [Ch. 8 
 
 against the legatee upon whose share the tax has been paid, 
 as for money paid to the tatter's use; 31 and the same rem- 
 edy would seem to be given such personal representatives 
 under our statutes, or at least at common law, as for money 
 paid for the legatee's benefit under compulsion of law. 32 
 
 Under none of the statutes, however, is there any per- 
 sonal liability on the part of the legatee or devisee, as such, 
 to pay the tax, unless he actually or constructively accepts 
 or receives the legacy or share, or any part thereof, in which 
 event it is taken cum onere, subject to the payment of the 
 duty. 33 In Louisiana the tax is held not to be a debt due 
 by the succession in the state, but by the foreign heirs; 
 hence it was necessary to bring suit directly against such 
 heirs. 34 
 
 But it will be a justification and a defense, on the part 
 of the legatee, for refusing to pay, that he has absolutely 
 renounced and refused to accept the inheritance or leg- 
 acy. 35 
 
 The fact that the legacy has not been paid, or its payment 
 demanded, does not defeat the tax, where there is no proof 
 that the legacy has been renounced. 36 
 
 si Foster v. Ley, 2 B'mg. N. C. 276. See, also, Hales v. Freeman, 
 1 Brod. & B. 391; In re Sammon, 3 Mees. & W. 3S1; Bate v. Payne, 
 13 Q. B. 900; In re Wilkinson, 1 Cronip., M. & R. 142; Greville v. 
 Greville, 27 Beav. 596. 
 
 32 See chapter 7, § 64; chapter 3, § 41. 
 
 33 Attorney General v. Munby, 3 Hurl. & N. 826; Foster v. Ley, 
 eupra; In re McPherson, 104 N. Y. 323, 10 N. E. 685; In re Howe, 112 
 N. Y. 103. 19 N. E. 513; In re Le Fever, 5 Dem. Sur. 185; In re 
 Walsh, N. Y. Law J. July 28, 1888; In re Vanderbilt's Estate, 
 supra; chapter 7, §§ 63, 64; Owings v. State, 22 Md. 116. 
 
 34 Succession of Deyraud, 9 Rob. (La.) 357; Succession of Dupuy, 
 33 La. Ann. 258. 
 
 3 5 In re McPherson, supra; In re Le Fever, supra; Attorney Gen- 
 eral v. Munby, supra, 
 ae in re Raymond, 12 N. Y. Law J. 453. 
 (392)
 
 Ch. 8] REMEDY AND PRACTICE. § 66 
 
 A constructive possession by the legatee is, however, 
 
 sufficient to make him liable, as where he was awarded a 
 certain sum in partition proceedings, and exercised acts 
 of ownership over it. 37 And, where the devisee taking the 
 property is liable to the succession tax, such liability is not 
 defeated by the fact that in partition proceedings he has 
 only had personal property assigned to him. 38 
 
 A release or conveyance by a devisee who is a collateral 
 heir, and taxable to one whose right of succession is not 
 subject to the tax after the devise has once been vested, 
 will not deprive the commonwealth of the tax. 39 
 
 So an alien devisee of land, who receives its value in such 
 proceedings, is estopped from setting up, as against a de- 
 mand for a succession tax thereon, the fact that, by the law 
 of the state where the land is situate, the devise to an alien 
 is null and void. 40 
 
 But there is no personal liability upon a purchaser of 
 land at partition sale to pay the tax, where the tax is a lien 
 upon the land itself, 41 and the statute does not authorize 
 a sheriff who has sold land and collected the proceeds under 
 the order of the court in such suit to pay the succession 
 tax upon the descent of such lands. 42 Where, however, the 
 purchaser of land upon which there is a tax due the state is 
 compelled to pay the same to save the land from sale under 
 
 37 in re Walsh's Estate, supra. 
 
 ss Scholey v. Rew, 23 Wall. 331; In re Walsh's Estate, supra; 
 Brune v. Smith, 13 Int Rev. Rec. 54, Fed. Cas. No. 2,053. See U. S. 
 v. Watts, 1 Bond, 581, Fed. Cas. No. 16,653; Page v. Rives, 1 Hughes, 
 297, Fed. Cas. No. 10,666. 
 
 39 in re Frank's Estate (1891) 8 Law Rev. 3S4, 28 Wkly. Notes Cas. 
 323, and 48 Leg. Int. 232; 9 Pa. Co. Ct. R. 662. 
 
 40 Scholey v. Rew, supra. 
 
 4i See section 67, post, and Wilhelmi v. Wade, 65 Mo. 39; Sohier 
 T. Eldridge, 103 Mass. 319. 
 42 Wilhelmi v. Wade, supra. 
 
 (393)
 
 § 66 REMEDY AND PRACTICE. [Ch. 8 
 
 execution for the tax, he may recover the amount from his 
 vendors upon an implied covenant contained in the words 
 "grant, bargain, and sell," in the deed. 43 
 
 In New York, it seems, a certified receipt of the county 
 treasurer or comptroller of the county where jurisdiction 
 was first acquired will be full protection to any subsequent 
 purchaser of such land, as against any claim for the tax. 44 
 
 Where real estate passes to a person who is subject to the 
 tax, the order of assessment must describe the same so that 
 in issuing receipts the comptroller or county treasurer may 
 designate on what real property said tax has been paid. 45 
 
 The initial steps which the statute requires the surrogate 
 to take are those of taxing officers, and not of judges. He 
 appoints an appraiser to appraise the cash value of the 
 property. Upon the coming in of the report he may enter 
 an order determining the cash value of the estate. The 
 order may be based upon the report, or upon any other proof 
 before him, and this he does "as of course." But the party 
 aggrieved may take an appeal from the order thus made 
 to the surrogate and then, for the first time, the procedure 
 takes on a judicial character. 46 
 
 The surrogate's court in the latter state has exclusive 
 original jurisdiction to hear and determine all questions 
 arising in proceedings to collect the tax. 47 
 
 43 Large v. McClain (Pa. Sup.) 7 Atl. 101; In re Boyd's Estate, 4 
 Wkly. Notes Cas. 510. See Kilderbee v. Ambrose, 28 Eug. Law & 
 Eq. 500. 
 
 4* In re Keenan (Surr.) 5 N. Y. Supp. 200. See In re Astor, 6 Dern. 
 Sur. 402. 
 
 ■is Laws 1887, c. 713, § 23; Laws 1892, c. 399, § 16; In re Jones, 7 
 N. Y. Law J. 578. 
 
 46 Weston v. Goodrich (1895) 8G Hun, 194, 33 N. Y. Supp. 382. 
 
 47 See chapter 7, § 62, pp. 350, 352; In re McPherson, 104 N. Y. 323, 
 324, 10 N. E. 685; In re Keenan, supra; Anderson v. Anderson, 112 N. 
 Y. 104, 113, 19 N. E. 427; Central Trust Co. v. New York City & N. R. 
 
 (394)
 
 Ch. 8] REMEDY AND PRACTICE. § 6t> 
 
 And, the jurisdiction of the surrogate being exclusive, the 
 supreme court of the state has no power, under these stat- 
 utes, in an equity action, to adjudicate in the first instance 
 upon the liability of an estate to the inheritance tax. Nor 
 has a justice of said court any power to act as an assessor 
 under said acts. 48 
 
 Under a recent statute passed in 1895, 49 a limited power 
 is now conferred upon justices of the supreme court to ap- 
 point an appraiser upon the application of the state comp- 
 troller, where the latter believes that a prior appraisement 
 or determination in the surrogate's court was fraudulent, 
 collusive, or erroneous. The application must be made to 
 the justice within two years after the order of the surrogate 
 is entered. 
 
 The proceeding to compel payment of the tax is com- 
 menced by petition filed by and in the name of the district 
 attorney — who is required to prosecute the proceeding — in 
 the surrogate's court of the county having jurisdiction over 
 the estate, 50 and it seems that the only method by which the 
 
 Co., 47 Hun, 587; Id., 110 N. Y. 250, 18 N. E. 92; In re New York, 
 L. E. & W. R. Co., 110 N. Y. 374, 18 N. E. 120; U. S. v. Trucks, 
 27 Fed. 541; In re Wolfe, 137 N. Y. 205, 33 N. E. 156; In re Ullmann, 
 137 N. Y. 406, 33 N. E. 480; Weston v. Goodrich, 86 Hun, 194, 33 N. 
 Y. Supp. 3S2. 
 
 4 s Weston v. Goodrich (1895) 86 Hun, 194, 33 N. Y. Supp. 382, citing 
 In re Wolfe, 137 N. Y. 205, 33 N. E. 156; In re Ullmann, 137 N. Y. 
 406, 33 N. E. 4S0. 
 
 49 See Appendix, I. e, Laws 1895, c. 556, amending section 13, Laws 
 1S92, c. 399. 
 
 bo See chapter 7, p. 357; In re Vanderbilt's Estate (Suirr.) 10 N. Y. 
 Supp. 239; In re Arnett, 49 Hun, 599, 601, 2 N. Y. Supp. 42S; In re 
 Farley's Estate, 15 N. Y. St. Rep. 727. For forms under the New 
 York statute, see Appendix, I.; In re Aster's Estate (Suit.) 2 N. Y. 
 Supp. 630; 2 Lawy. Rep. Ann. 825, note. For a digest of cases under 
 the statute, by Theo. Connoly, Esq., see 2 N. Y. Law J. (Dec. 24, 
 1S89) 1760. 
 
 (395)
 
 § 66 REMEDY AND PRACTICE. [Ch. 8 
 
 liability of the executor or others to pay the tax can be de- 
 termined is by such a proceeding. 51 
 
 The proceeding, under statutory requirement, is based 
 upon a notice in writing from the county treasurer or comp- 
 troller to the district attorney, showing a "refusal or neg- 
 lect" to pay the tax upon the part of the parties liable there- 
 to. If, upon receipt of such notice, the district attorney 
 shall have probable cause to believe a tax to be due, he 
 shall thereupon initiate the proceedings to collect the tax. 
 There is nothing in the statute requiring previous demand 
 upon any of the parties liable for payment of the tax before 
 the proceeding is begun. 52 
 
 Under the Illinois statute 53 the proceeding to collect the 
 tax is somewhat similar to the New York statute; the act 
 providing that, if it shall appear to the county court that 
 any tax accruing has not been paid according to law, it 
 shall issue a summons, summoning the persons interested 
 in the property liable to the tax to appear before the court 
 on a day certain, not more than three months after the 
 date of such summons, to show cause why said tax should 
 not be paid. The process, practice, and pleadings, and 
 the hearing and determination thereof, and the judgment 
 in said court in such cases, shall be the same as those now 
 provided, or which may hereafter be provided, in probate 
 cases in the county courts of the state. It is further pro- 
 vided 54 that whenever the treasurer of any county shall 
 
 6i Cases supra. But see Frazer v. People (Surr.) 3 N. Y. Supp. 134; 
 In re Astor's Estate, supra. In re Wolfe, and cases supra. 
 
 52 See Appendix, I. a, Laws 1887, c. 713, § 17; In re Vanderbilt's 
 Estate (Surr.) 10 N. Y. Supp. 239. Demand seems to have been neces- 
 sary under the federal statute. See U. S. v. Pennsylvania Co., 27 
 Fed. 539. What not a refusal to pay tax as regards costs of district 
 attorney, see Frazer t. People, supra, 
 
 63 Appendix, X., §§ 14, 15. 
 
 6 4 Appendix, X. § 15. 
 (396)
 
 Ch. 8] REMEDY AND PRACTICE. § 66 
 
 have reason to believe that any tax is due and unpaid, after 
 the refusal or neglect of the person interested in the prop- 
 erty liable to pay said tax to pay the same, he shall notify 
 the state's attorney of the proper county, in writing, of such 
 refusal to pay said tax, and the state's attorney so notified, 
 if he has proper cause to believe a tax is due and unpaid, 
 shall prosecute the proceeding in the county court 55 for the 
 enforcement and collection of such tax. 
 
 No demand is necessary where a statute provides that 
 proceedings may be commenced upon a "neglect" or "re- 
 fusal" to pay. 56 
 
 While the district attorney is a proper party upon the 
 final accounting of an executor, as being interested in the 
 estate for the purpose of the tax, yet, in order to compel 
 payment, he must institute the formal proceedings required 
 by the statute, citing all necessary parties thereto. 67 
 
 The executor, administrator, or trustee, or any other 
 party interested B8 in the estate liable to the tax, may also, 
 under the act, institute proceedings to have the property 
 assessed or valued for the purpose of ascertaining the 
 amount of the tax due. 59 The proceeding, however, for an 
 appraiser, will be dismissed where no facts are stated, but 
 only a conclusion of law that the estate is not liable. 60 
 
 But it will be observed that this proceeding is of an en- 
 tirely different nature from the one directed to be begun 
 by the district attorney, which is, primarily, to compel 
 
 6 5 See Appendix, X. § 14. 
 
 ee McLean v. Brown, 5 N. Y. Law J. 407. 
 
 5? Cases supra, and In re Arnett, 49 Hun, 599-601, 2 N. Y. Supp. 
 428; In re Vanderbilt's Estate, supra. See In re Farley's Estate, 15 
 N. Y. St. Rep. 727. 
 
 5 8 As to meaning of this phrase, see In re Wagner's Estate, 119 N. 
 Y. 32, 23 N. E. 200; In re Arnett, supra. 
 
 58 Appendix, I. e, § 13; Frazer v. People, supra. See In re Farley, 
 supra. 
 
 so In re Cockey, S N. Y. Law J. 1507. 
 
 (397)
 
 § 66 REMEDY AND PRACTICE. [Ch. 8 
 
 payment of the tax from parties who have refused or neg- 
 lected to pay the same. 
 
 It was held, under the act of 1887, 61 that the state was 
 bound by a decree made in a proceeding begun by the ex- 
 ecutor under this provision of the statute, where no previ- 
 ous notice of the proceeding was given to the county treas- 
 urer or comptroller, the court holding that under the stat- 
 ute no such notice was either required or necessary; that 
 the surrogate, in declaring an exemption from taxation, 
 acted as a state assessor; and that his decree exempting 
 the legatees was binding upon the state, without notice to 
 any other state official. 62 Now, however, the act of 1892 * 
 requires the county treasurer or comptroller to be notified 
 in the first instance of the proceeding for the appointment 
 of an appraiser under the act. 83 
 
 Though an estate subject to the tax had been appraised, 
 and the surrogate had assessed the tax due thereon, and it 
 had been paid, such proceeding does not bar a further pro- 
 ceeding to enforce the payment of the tax on property of 
 the same estate not appraised in the former proceeding be- 
 cause withheld from the notice of the appraiser. 64 
 
 Under the Pennsylvania statute, 65 the tax is imposed only 
 on, "estates * * * passing from any person who may 
 
 6 1 Appendix, I. a. 
 
 62 in re Wolfe, 137 N. Y. 205, 33 N. E. 156, distinguished in in Re 
 Smith's Estate (Suit.) 23 N. Y. Supp. 762. See In re Astor, 6 Dem. 
 Sur. 402. As to when the surrogate's decree is deemed conclusive, 
 see Code Civ. Proc. N. Y. § 2473. 
 
 * Chapter 399, §§ 11, 12. 
 
 63 See In re Vanderbilt's Estate, supra; In re McPherson, 104 N. 
 Y. 323, 10 N. E. 685; Crane v. Mayor, etc., 13 N. Y. St. Rep. 342; 
 Lockwood v. Carr, 4 Dem. Sur. 515; Davis v. Crandall, 101 N. Y. 
 311, 4 N. E. 721; Succession of Dupuy, 33 La. Ann. 261. 
 
 e* In re Smith's Estate (1893; Suit.) 23 N. Y. Supp. 762, distin- 
 guishing In re Wolfe, 137 N. Y. 205, 33 N. E. .156. 
 es Act May 6, 1887, p. 79. 
 (398)
 
 Ch. 8] REMEDY AND PRACTICE. § GO 
 
 die seized or possessed of such estates." It is upon the 
 state to show, not only that the persons against whom it 
 claims taxes are not of the exempted classes, but that the 
 estate passed from one who actually died seised or pos- 
 sessed of the same. Therefore, where property was set- 
 tled b}' will to one in trust for life, and upon the determina- 
 tion of the life estate to the "right heirs" of the testator, 
 and upon the death of the life tenant in trust it becomes 
 established that the life tenant was entitled as the "right 
 heir," the estate was awarded to the distributees under the 
 will of the deceased life tenant, free of the tax upon her 
 estate. 60 
 
 Ex parte orders or decrees relieving persons from the tax 
 are not, therefore, binding upon the county treasurer or 
 comptroller, and are no bar to proceedings begun by them to 
 collect the tax. 67 As a general rule, it is doubtful wheth- 
 er anything will bar the claim of the state, excepting pay- 
 ment of the tax, or a decree of a competent court having ju- 
 risdiction in the premises. Even a receipt for payment of the 
 tax will not act as an estoppel against the state to recover 
 a tax or interest due, where the receipt was simply for the 
 amount of tax fixed by the court, and does not express the 
 idea that the money was received in satisfaction, discharge, 
 or payment of the amount of the tax claimed by the state. 68 
 And a receipt is no bar to proceedings to collect taxes which, 
 by mistake or fraud, were omitted to be paid. 69 
 
 ee in re Swann's Estate, 147 Pa. St. 383, 23 Atl. 599. 
 
 6 7 id.; In re Lenox's Estate (Suit.) 9 N. Y. Supp. 895; In re Hoch- 
 ster, cited Id. 896. 
 
 es Commonwealth's Appeal (Fagely's Estate) 128 Pa. St. 613, 18 
 Atl. 3S6. See In re Vanderbilt's Estate (Suit.) 10 N. Y. Supp. 239; 
 In re Astor, supra; Commonwealth's Appeal (Bittinger's Estate) 129 
 Pa. St. 338, 18 Atl. 132; Com. v. Freedley, 21 Pa. St. 33; In re Brew- 
 er's Estate, 16 Pittsb. Leg. J. (N. S.) 114; 15 Pittsb. Leg. J. (N. S.1 435; 
 Smith's Estate, supra. 
 
 69 Id. and In re Brewer's Estate, supra. As to effect of receipt upon 
 
 (3i)U)
 
 § 66 REMEDY AND PRACTICE. [Ch. 8 
 
 In fact, whether the proceeding is one begun by the state 
 through its designated officials, or by the persons interested 
 in the estate, all parties under the statute, interested in the 
 property, as heirs, legatees, or public officials, are entitled 
 to notice 70 and hearing, as without these the proceeding, 
 as to them, will be void. 71 As we have seen under the act 
 of 1892, 72 the county treasurer or comptroller is also enti- 
 tled to be notified of the proceeding. 
 
 The rights of the parties to this proceeding under the New 
 York statute have been aptly described by Earl, J., in Re Mc- 
 Pherson : 7 3 "Upon return of the citation, the person cited may 
 allege any reason whatever which shows that he ought not 
 to pay the tax. He may answer that he has not had an op- 
 portunity to be heard upon the appraisal, and that, therefore, 
 the tax, as to him, is void. He may show any error affect- 
 ing the validity of the tax, and that he has never received, 
 and never will receive, the inheritance or legacy; and it 
 would be a justification for refusing to pay, that he had ab- 
 solutely renounced and refused to accept or receive the in- 
 heritance or legacy. * * * When the section provides 
 that the surrogate shall designate by order to whom the no- 
 tice is to be given, it is necessarily implied that he shall des- 
 ignate all persons entitled to notice. If he should omit to 
 do so, it would be an error on account of which any tax im- 
 posed upon the person not notified or heard, would be in- 
 valid, as having been imposed without jurisdiction." 
 
 proceedings of the district attorney, where there is property in differ- 
 ent counties liable to the tax see In re Keenan's Estate (Surr.) 5 N. Y. 
 Supp. 200. 
 
 70 Orders appointing appraisers should specify persons entitled to 
 notice. In re Astor, 6 Dem. Sur. 402; In re McPherson, 104 N. Y. 
 322, 10 N. E. 685. 
 
 ~ i Cases supra, and In re Miller's Estate, 110 N. Y. 216, 224. 18 N. 
 E. 139; In re Arnett, 49 Hun, 602, 2 N. Y. Supp. 428. 
 
 72 Appendix, I. e, Laws 1892, c. 399, § 11. 
 
 7 3 104 N. Y. 323, 10 N. E. 685. 
 (400)
 
 Ch. 8] REMEDY AND PRACTICE. § 66 
 
 The doctrine of notice is one which funis application when 
 it is sought to tax the property of the citizen. Winn he is 
 to be assessed, it is essential that he shall be given an op- 
 portunity to be heard, to establish a demand against him. 7 * 
 
 And under the act of 1S92, where infants are interested in 
 the estate, they are entitled to be notified of the assessment 
 proceeding, and to have special guardians appointed to rep- 
 resent their interests. 75 
 
 In a proceeding, how r ever, to vacate the assessment for 
 being without notice, it will be presumed, in the absence of 
 proof to the contrary, that the surrogate gave the notice 
 required by statute. 76 
 
 Under the statute it would seem that the surrogate has 
 the power to order a reference for the purpose of determin- 
 ing any doubtful or disputed question of fact, and he may 
 take all necessary testimony 7T in relation thereto. 
 
 As to the effect of his decree, it is confirmatory of the 
 rights of the state, where made upon proper notice, and es- 
 tablishes an additional right, — that of recovery, by virtue 
 of itself; 78 and such decree cannot be vacated, as having 
 been made inadvertently, upon a motion based upon a 
 change in the law effected by a statute passed after the ren- 
 dering of the decree, and before payment of the tax. 78 An 
 order imposing the tax will not be modified or amended by 
 motion, the remedy being by appeal. 80 
 
 7 4 in re Wolfe, 137 N. Y. 205, 33 N. E. 15G; In re Cockey, S N. Y. 
 Law J. 1507. 
 
 75 in re Lewis, 7 N. Y. Law J. 951, citing In re McPberson, 104 N. 
 Y. 306, 10 N. E. 685. 
 
 7 6 Estate of Miller, 110 X. Y. 216, 18 N. E. 139. 
 
 7 7 Code Civ. Proc. § 2546; see In re Pearsall, 51 Hun, 639. 4 N. Y. 
 Supp. 365; In re Prout's Estate (Suit.) 3 X. Y. Supp. 831; In re 
 Astor's Estate (Suit.) 2 N. Y. Supp. 630; In re McFhersou. supra. 
 
 7 8 i n re Miller, 6 Dem. Sur. 119, 110 X. Y. 216, IS X. E. 139. 
 
 79 Id.; see chapter 3, § 33. 
 
 so in re Ferrer, X. Y. Law J. (Jan. 30, 1S92) 1062. 
 
 LAW IN HER. — 26 (1U1)
 
 § 66 REMEDY AND PRACTICE. [Ch. 8 
 
 Under these statutes, parties aggrieved by the imposition 
 of the tax are afforded a remedy by appeal, 81 and the state 
 is afforded the same remedy where it is aggrieved by any 
 error of the court in refusing to assess or impose the tax as 
 required by law. Some of the questions relating to appeals 
 from proceedings before the appraiser have already been 
 considered. 82 
 
 After the time to appeal has expired, an order imposing 
 the tax will not be amended or modified by the surrogate. 83 
 
 Upon appeal to the surrogate from an assessment of the 
 tax, security should be given to pay the tax and costs im- 
 posed. 84 
 
 Under the recent act of 1892, 85 it would seem that any 
 successful party to the proceeding is entitled to costs, the 
 same as in other actions. s6 
 
 si In re McPherson, 104 N. Y. 323, 10 N. E. G85. As to power of 
 United States supreme court to review decisions of state court under 
 these statutes, see Carpenter v. Penn, 17 How. 456, 4G2. 
 
 82 Chapter 5, § 55. As to whether, in New York, under these pro- 
 ceedings, the surrogate can be reviewed on appeal without findings 
 of fact and conclusions of law has not been determined. The pro- 
 ceedings are of a summary nature, the appraiser, in ascertaining 
 the value of the property, receives all proof bearing upon the subject 
 (see chapter 5, p. 209), nnd as additional proof will be received by the 
 surrogate upon motion to confirm the appraiser's report, findings 
 would seem to be wholly foreign to a proceeding of this nature. 
 Consult, however, In re Fall's Estate (Sup.) 10 N. Y. Supp. 41, and 
 cases cited Code Civ. Proc. N. Y. § 2545. 
 
 83 in re Ferrer, N. Y. Law J. (Jan. 30, 1892) 1062. 
 
 s* Appendix, I. e, Laws N. Y. 1892, c. 399, § 13; In re Phelp's 
 Estate, N. Y. Law J. Jan. 23, 1890. As to costs of district attorney 
 under the statute of 1S87, see In re Stucke, N. Y. Daily Reg. April 
 25, 1889; Frazer v. People (Surr.) 3 N. Y. Supp. 134; In re Min- 
 turn's Estate, 3 N. Y. Law J. 804. As to costs of district attorney 
 under the act of 1S92, c. 399, § 15, see In re McCarthy's Estate 
 (Surr.) 25 N. Y. Supp. 987. 
 
 so Chapter 399, § 15. 
 
 so in re Hoffman, N. Y. Law J. Nov. 17, 1893. 
 (402)
 
 Ch. 8] REMEDY AND PRACTICE. § 6G 
 
 In Pennsylvania, where the tax is imposed upon real es- 
 tate, the heir, and not the administrator, is given the right 
 of appeal from the appraiser's report; but, upon questions 
 relating to the appraisement ST of the personalty, the ad- 
 ministrator only has the right of appeal, ss and, unless the 
 report of the appraiser shows prima facie error, no appeal 
 can be taken therefrom. 89 
 
 The general rule is that a tax voluntarily paid under a 
 mistake of law cannot be recovered back. 90 
 
 Many of the statutes imposing this tax provide for resti- 
 tution where the tax is erroneously paid. 91 
 
 In New York, under the act of 18S7, 92 application for res- 
 titution of taxes paid erroneously must be made to the state 
 treasurer, on satisfactory proof rendered to the state comp- 
 troller by the county treasurer or county comptroller of such 
 erroneous payment, and the application should be made 
 within five years from the date of the payment. In this re- 
 spect the method pointed out by the statute is exclusive of 
 any other remedy. 93 
 
 Under the act of 1S92, 94 it is now provided that it shall 
 be lawful for the comptroller of the state, upon satisfactory 
 proof presented to him of the facts, to require the amount 
 of such illegal or erroneous payment to be refunded to the 
 
 8T See chapter 5, § 54, subd. c. 
 
 ss Com. v. Coleman, 52 Pa. St. 4GS. 
 
 8 9 In re Goldstein's Estate. 10 Phila. 319. 
 
 90 People v. Wemple, 69 Hun, 307, 23 N. Y. Supp. 061, 664; 133 
 N. Y. 617, 30 N. E. 1002. 
 9i See chapter 4, § 49. 
 
 92 Appendix, I. a, e, c. 713, § 12; Laws 1S92, c. 399, § 0. Redf. 
 Surr. Prac. (4th Ed.) p. 580, considers this section incapable of en- 
 forcement under Const. N. Y. art. 7, § S. 
 
 93 in re Howard, 54 Hun, 305, 7 N. Y. Supp. 594; Dewey v. Super- 
 visors, 02 N. Y. 294. See, also, In re Hall's Estate (Sup.) 7 N. Y. 
 Supp. 595; In re Keech (Surr.) 7 N. Y. Supp. 331, affirmed, Id. (Sup.) 
 11 N. Y. Supp. 205. 
 
 9 4 Laws 1892, c. 399, § 0. 
 
 (403)
 
 § 06 REMEDY AND PRACTICE. [Ch. 8 
 
 executor, administrator, trustee, person, or persons who 
 have paid any such tax in error, from the treasury; or the 
 said comptroller ma}', by order, direct and allow the treas- 
 urer of any county, or the comptroller of the city of New 
 York, to refund the amount of any illegal or erroneous pay- 
 ment of such tax out of the funds in his hands or custody 
 to the credit of such taxes, and credit himself with the same 
 in his quarterly account rendered to the state comptroller. 
 Applications for refunding must, as under the act of 1887, 
 be made within five years from the payment of the tax. 
 Under this act 95 the surrogate has power to direct the tax 
 to be refunded while it is still in the hands of the county 
 treasurer. 96 
 
 But the question of restitution does not properly arise 
 upon a mere appeal from the order assessing and fixing the 
 tax, taken after the payment of the tax, to which appeal nei- 
 ther the comptroller nor the state treasurer is made a par- 
 ty. 97 
 
 Where a tax is paid under protest and the law is subse- 
 quently declared unconstitutional, such tax may be recov- 
 ered back. 98 
 
 A writ of prohibition will lie against a probate judge, to 
 restrain the enforcement of a collateral inheritance tax 
 upon the ground that it is unconstitutional. 99 
 
 95 Laws 1S92, c. 399, § 10. 
 
 »e in re Parks' Estate, 8 Misc. Rep. 550, 29 N. Y. Supp. 1081. 
 
 »7 in re Hall, supra. For return of duty under English statutes, 
 see Layton, Leg. & Succ. Duties (7th Ed.) p. 236 et seq. 
 
 os Mearkle v. Hennepin Co., 44 Minn. 546, 47 N. W. 165; Cooley, 
 Tax'n, 566, and eases cited. 
 
 »9 Chambe v. Durfee (1894) 100 Mich. 112, 58 N. W. 661. 
 (404)
 
 Ch. 8] REMEDY AND PRACTICE. § 67 
 
 § 67. Lien of the Tax and Its Effect— Statute of 
 Limitations. 
 
 A lien is not, in strictness, either a jus in rem, or a jus 
 ad rem; but it is simply a. right to retain and possess prop- 
 erty until some charge attaching to it has been paid or dis- 
 charged. 100 As a general rule taxes do not become liens 
 upon the property subject to taxation until they have been 
 assessed in the manner required by statute, 101 unless es- 
 pecially declared to be liens, when they are termed statu- 
 tory liens, and by force of the statute immediately impress 
 themselves as a liability upon the property. 102 Under these 
 statutes, the tax is generally made a lien upon real estate 
 and sometimes upon personal property. 
 
 Tinder the English acts a very comprehensive lien is pro- 
 vided for upon real property, 103 the rights of bona fide pur- 
 chasers without notice being at the same time protected; 104 
 and, to a certain extent, personal property liable to the tax 
 is also subjected to a lien to secure its payment. 105 ■ 
 
 Under the New York statutes 106 the tax remains a gen- 
 
 ioo l Story, Eq. Jur. § 506. 
 
 ioi Lathers v. Keogh, 109 N. Y. 5S3. 17 N. E. 131; Dowdney v. 
 Mayor, etc., 54 N. Y. 18G. 
 
 10 2 Heine v. Commissioners, 19 Wall. 655; Tompkins v. Little Rook 
 & Ft. S. R. Co., 125 U. S. 119, 8 Sup. Ct. 762; Id., 18 Fed. 344. 
 
 103 16 & 17 Vict. c. 51, § 42; see Attorney General v. Giles, 5 Hurl. 
 & N. 255. 
 
 104 10 & 17 Vict. c. 51, § 52. 
 
 105 As to when the purchaser of real estate under agreement to 
 buy free from incumbrances is liable to pay succession duty as be- 
 tween himself and the vendor, see Cooper v. Trewby, 2S Bear. 194; 
 In re Langham, 60 Law J. Ch. 110; Dugdale v. Meadows, L. R. 9 
 Eq. 212. 
 
 loo Laws 1SS7, § 2. See, also, Laws 1892, c. 399, §§ 3, 5, Appendix, 
 I. a, e. 
 
 (405)
 
 § 67 REMEDY AND PRACTICE. [Ch. 8 
 
 era! lien until it is paid. It also remains a charge upon 
 the real estate until paid. 107 The same provisions are con- 
 tained in the act of 1892, 108 and there is no limitation of 
 time in favor of executors or legatees against the tax as a 
 penalty or forfeiture under the Civil Code. 109 
 
 A certified copy of the county treasurer's receipt showing 
 payment of the tax will be full protection to bona fide pur- 
 chasers 110 against any future claim. As a general rule, 
 a statute of limitations will not bind the state unless it has 
 expressly consented to be bound. 111 
 
 Under the Illinois statute 112 the lien of the collateral 
 inheritance tax continues until the tax is settled and satis- 
 fied, but said lien is limited to the property chargeable 
 therewith, and all inheritance taxes shall be sued for with- 
 in five years after they are due and legally demandable, 
 otherwise they are presumed to be paid, and cease to be 
 a lien as against purchasers of real estate. 
 
 The present statute of Pennsylvania, 113 provides for a 
 statutory lien of five years upon real estate, but after that 
 time the lien is presumed to be paid as against purchasers 
 of such real estate. 114 
 
 Under the original act of 1826, the tax became a lien 
 from the time of the death of decedent, when the tax ac- 
 
 107 Laws 1892, c. 399, § 6, Appendix, I. e. 
 
 108 id. 
 
 io9 In re Vanderbilt's Estate (Suit.) 10 N. Y. Supp. 239; citing Code 
 Civ. Proe. § 3S4, providing that "an action upon a statute for a for- 
 feiture or penalty to the people of the state" must be brought within 
 two years after the cause of action accrues. 
 
 no In re Keenan's Estate (Surr.) 5 N. Y. Supp. 200; In re Astor's 
 Estate (Surr.) 2 N. Y. Supp. 630. 
 
 in Cullen's Estate (1891) 142 Pa. St. 18, 21 Atl. 781. 
 
 112 Appendix, X., Laws 111. 1895 (Bradwell's Ed.) p. 217, § 22. 
 
 us Appendix, X., Laws 1887, §§ 7, 20. 
 
 ii4 Appendix, X., Laws 1SS7, § 12. 
 (406)
 
 Ch. 8] REMEDY AND PRACTICE. § 67 
 
 crued, and so remained until fully paid. 118 Subsequently, 
 by act of 1855, it was limited to 20 years. 116 
 
 The tax or lien, however, under these statutes, only at- 
 taches to what remains for distribution after the expense 
 of administration, debts, and rightful claims of third par- 
 ties are provided for. It attaches upon the net succession 
 to the beneficiaries, and not upon the securities or land in 
 which the estate of the deceased may be invested. 117 
 
 The lien of the tax is, however, perpetual against owners, 
 devisees, or legatees, and the limitation in the acts applies 
 only to the purchasers of such real estate. 118 
 
 The proviso of the statute was simply intended to quiet 
 the title of purchasers of real estate, and that is the extent 
 of its operation. Where there is no purchaser to protect, 
 the lien of taxes due upon real estate, as well as the debt 
 itself, will continue after five years, notwithstanding that 
 suit is not brought within that time. 119 
 
 Where a debt is barred by the statute of limitations, and 
 is subsequently recognized by the decedent as a valid claim, 
 in the shape of a legacy for the amount, it is not liable to 
 duty. 120 The commonwealth is not barred from collecting 
 
 us Com. v. Coleman, 52 Pa. St. 470. 
 
 ne Mellon's Appeal, 114 Pa. St. 564, 8 Atl. 1S3. 
 
 ii7 See cases cited chapter 5, §§ 52, 55; Orcutt's Appeal, 97 Pa. St. 
 179; Commissioner's Appeal (Avery's Estate) 34 Pa. St. 204; Strode 
 v. Com., 52 Pa. St. 181; In re Rubincam's Estate, 38 Leg. Int. 261; 
 Commissioner's Appeal (Cooper's Estate) 127 Pa. St. 435, 17 Atl. 1094, 
 affirming Cooper v. Com., 5 Pa. Co. Ct. R. 271; Cullen's Estate, supra; 
 In re Will of Enston, 113 N. Y. 181, 21 N. E. 87; Mellon's Appeal, 
 supra. 
 
 us Cullen's Estate, 26 Wkly. Notes Cas. 216, 142 Pa. St. 18, 21 Atl. 
 781; James' Appeal, 2 Del. Co. Rep. 164; Mellon's Appeal, supra; 
 In re Butler's Estate (1894) 14 Pa. Co. Ct. R. 667. 
 
 no In re Cullen's Estate (1891) 142 Pa. St. 18, 21 Atl. 781. 
 
 120 Williamson v. Naylor, 3 Younge & C. Exch. 208. See chapter 
 8, § 67. 
 
 (407)
 
 § 67 REMEDY AND PRACTICE. [Ch. 8 
 
 the inheritance tax by proceedings begun more than five 
 years after the passage of the act of 1887, 121 where prior to 
 that act the widow bought the estate in remainder from 
 collateral heirs. 122 
 
 After 42 years, collateral inheritance tax will be presumed 
 to have been paid, not onl}- on the ground of lapse of time, 
 but also from the presumption that the executor did his 
 duty under his oath of office. 123 
 
 One of the most interesting cases upon the subject of the 
 lien is that of Mellon's Appeal, 124 in which the supreme 
 court of Pennsylvania decided two important questions: 
 First, as to the effect of the failure on the part of the state 
 to prosecute the lien created in its favor, as against a bona 
 fide purchaser without notice, within 20 years after the tax 
 accrued; and, secondly, the effect of such neglect upon col- 
 lateral heirs still possessing the property. The facts showed 
 that in 1849 the wife of one B. died intestate, seised of cer- 
 tain lands, leaving as her only heirs her husband and three 
 minor children. Under the statute the land descended to the 
 children, subject to the father's life estate. In 1864 the eld- 
 est daughter died intestate, without issue, and unmarried, 
 and subject to the life estate, and charged with the tax her 
 third interest devolved upon her brother and sister. There 
 was no administration of her estate. In 1866 the father, 
 as guardian of the two children, sold three acres of the 
 land; and in 1870, at maturity, the children conveyed four 
 acres to their father, B., he releasing his life estate in the 
 residue of the property. He died in 1872, devising the land 
 to children by a second marriage. The share of one child 
 was sold in partition to Mellon, and the other child sold part 
 
 121 May G, 1SS7. 
 
 122 Butler's Estate (1S94) 14 Pa. Co. Ct. R. C.G7. 
 
 123 in re Stewart's Estate"(Bell's Appeal; 1S92) 147 Fa. St. 3S3, ZZ 
 Atl. 599. 
 
 124 114 Pa. St. 504, S Atl. 1S3. 
 (408)
 
 Ch. 8] REMEDY AND PRACTICE. § 67 
 
 of her share, retaining a portion. In holding that the ac- 
 tion could not be maintained by the state, the court said: 12B 
 "If the tax accrued at the time of Mrs. B.'s decease, in 1864, 
 by the devolution of her undivided interest in the land, and 
 the commonwealth might have proceeded at any time there- 
 after to have the same appraised, and the amount of tax 
 ascertained, with a view of its ultimate collection, the lapse 
 of twenty years without any steps having been taken in 
 that direction raises a conclusive presumption of payment 
 as to bona fide purchasers from those to whom the remain- 
 der in fee descended, and the lien theretofore existing in 
 favor of the commonwealth forthwith ceased, as to such 
 purchasers." 
 
 It was further held that the fact that no administration 
 was had upon the estate liable to the tax, for which reason 
 the matter was not brought to the attention of the register, 
 did not operate to remove the bar, and that as to the portion 
 of the estate unsold, subject to the tax, it must be deemed to 
 have been constructively paid, by the fact that the money 
 realized from judicial sales of the interest bound by the lien 
 was sufficient to have paid the tax; and the court said: "If 
 the claim had been made, the court would doubtless have re- 
 tained its grasp on a sufficient amount of the funds to pay 
 the tax lien, but no claim upon the fund was ever made. 
 * * * That fact did not, however, prevent the discharge 
 of the lien by judicial sales producing funds applicable pri- 
 marily to the lien, and more than sufficient to pay it." 126 
 
 Thus the lien of the tax upon real estate was held to be 
 divested by the sheriff's sale in partition. 
 
 And where the purchaser of land upon which there was 
 a lien for unpaid taxes due the state was compelled to pay 
 the same, to save the land from sale under execution, he was 
 
 125 Page 5G9, 114 Pa. St.. and page 1S3. 8 Atl. 
 
 126 Mellon's Appeal, supra. See Martin's Estate. 19 Pa. Law J. (N. 
 S.) 145; Willing's Estate, 33 Leg. Int. 54, 2 Wkly. Notes Cas. 307, 308; 
 
 (400)
 
 § 67 REMEDY AND PRACTICE. [Ch. 8 
 
 allowed to recover the amount paid from his vendors, upon 
 an implied covenant in the deed of sale. 127 
 
 The acts of congress subjected the property liable to the 
 tax to liens, and specified the method of enforcing payment, 
 but, as we have seen, 128 they did not create a personal lia- 
 bility on the part of the legatee, unless he received the tax- 
 able interest or property, and in order to enforce the lien 
 there must have been a neglect or refusal to pay the tax by 
 the person having the property, after demand made. 129 The 
 duty became a lien from the time the tax became due and 
 payable. 130 After 20 years the tax was presumed to be paid, 
 and the lien ceased. 131 
 
 So purchasers of land upon the descent of which a suc- 
 cession tax is due under these acts 132 incur no personal 
 liability to pay it, but take the title subject to the lien; and 
 it seems a party is not liable for payment of the tax due 
 upon the descent of the land, greater than his share in the 
 land. 133 
 
 Where the land which is subject to the tax has been sold 
 in parcels successively, the last sold, if of sufficient value, 
 
 Wilhelmi v. Wade, 65 Mo. 39; Succession of Dupuy, 33 La. Ann. 
 260; In re Keenan's Estate (Suit.) 5 N. Y. Supp. 200. See, also, 
 Kortright v. Blunt, 12 How. Prac. 424, reversed on another ground, 
 21 N. Y. 343; Daly v. Sanders, 9 N. Y. St. Rep. 794. 
 
 127 Large v. McClain (Pa. Sup.) 7 Atl. 101. See Boyd's Estate, 4 
 Wkly. Notes Cas. 510. 
 
 i2s Supra, p. 388. 
 
 129 U. S. v. Pennsylvania Co., 27 Fed. 539; U. S. v. Trucks, Id. 
 541; Sohier v. Eldridge, 103 Mass. 349; Wilhelrni v. Wade, supra. 
 
 130 Clapp v. Mason, 94 U. S. 592; U. S. v. Allen, Fed. Cas. No. 
 14.430; U. S. v. Hazard, 8 Fed. 380. 
 
 isi Mason v. Sargent, 104 U. S. 690. As to when action to recover 
 back penalty illegally exacted upon succession tax is not barred, see 
 Wright v. Blakeslee, 101 U. S. 174. 
 
 132 i Brightly. Purd. Dig. (12th Ed.) p. 308, § 25. 
 
 133 Wilhelmi v. Wade, supra; Succession of Dupuy, 33 La. Ann. 260. 
 But see Large v. McClain, supra. 
 
 (410)
 
 Qh. 8] REMEDY AND PRACTICE. § 68 
 
 is liable for the whole tax, notwithstanding that the first 
 sold at judicial sale was sufficient to have paid the tax. The 
 last lot sold stands in relation of principal to the first, 134 
 and, where there are several tracts of land of a decedent to 
 be valued for the tax, the tracts should be valued separately, 
 and as occupied by the tenants. 136 
 
 § 68. Interest and Penalties for Nonpayment of 
 
 Tax. 
 
 These acts frequently impose interest from the time the 
 tax accrues, which is generally at decedent's death, until its 
 final payment, and also penalties for nonpayment of the tax 
 when due. Ordinarily, a tax does not carry interest by iiu 
 plication of law, 136 as in the case of a debt; and in all sys- 
 tems of taxation, where default is made in the payment of 
 the tax, interest is added by way of penalty for such de- 
 fault. 137 
 
 Statutes imposing penalties are to be strictly construed 
 against the claim. 138 
 
 As a rule, suits to recover penalties under statutes of this 
 character cannot be enforced in foreign states or coun- 
 tries. 139 
 
 134 Martin's Estate. 19 Pittsb. Legi. J. (N. S.) 145, 28 Atl. 575, dis- 
 tinguishing Mellon's Appeal, 114 Pa. St. 5(34, 8 Atl. 183. 
 
 13 5 McKean's Estate, 12 Pittsb. Leg. J. (N. S.) 299. But see In re 
 Keenan's Estate (Suit.) 5 N. Y. Supp. 200. 
 
 136 Cooley, Tax'n (2d Ed.) p. 17; Hil. Tax'n, p. 16. 
 
 is? In re Prout's Estate, 53 Hun, 543, G N. Y. Supp. 457; Brewer's 
 Estate, 16 Pittsb. Leg. J. (N. S.) 114; Banks' Estate, 5 Pa. Co. Ct. 
 R. 015. 
 
 138 in re Prout's Estate, supra, affirmed 117 N. Y. 650, 22 N. E. 
 1132. And see Chase v. Railroad Co., 26 N. Y. 525; Sprankle v. 
 Com., 2 Walk. (Pa.) 420. 
 
 139 Wisconsin v. Pelican Ins. Co.. 127 U. S. 2C,r K s Sup. Ct. 1370. 
 As to when a nonresident's estate is not liable for penalty, In re 
 Purroy, 7 N. Y. Law J. 344. 
 
 (411)
 
 § 68 REMEDY AND PRACTICE. [Ch. 8 
 
 Under the Pennsylvania acts of 1849 and 1855, if the tax, 
 which was imposed upon all estates, including remainders, 
 was not paid within nine months after decedent's death, it 
 carried a penalty of 12 per cent, from the date of death. 140 
 
 Under the act of 1887, the interest on taxes for which 
 tenant in remainder is liable begins to run only from the 
 time such tenant has the right of actual possession or en- 
 joyment. 141 
 
 Where the failure to pay inheritance tax promptly is 
 caused by an honest doubt, as to the liability (i. e. whether 
 life tenant or tenant in remainder is liable), the penalty for 
 nonpayment should not be exacted. 142 
 
 Where there is unavoidable delay in the settlement of de- 
 cedent's estate, the 12 per cent, penalty is not chargeable, 
 but interest from the end of the year should be added. 143 
 
 Where the delay in payment of the tax was caused by the 
 resistance of the executors and legatees to the common 
 wealth's claim, and the case was decided adversely to the 
 
 140 com. v. Smith, 20 Pa. St. 100; Commonwealth's Appeal 
 (Avery's Estate) 34 Pa. St. 204; In re McKean's Estate, 12 Pittsb. 
 Leg. J. (N. S.) 299, 300; James' Appeal, 2 Del. Co. R. 164; Com. v. 
 Bailsman, 10 Lane. Bar (Pa.) 1S9. The act of 1855, substituting 6 per 
 cent, annual charge for the 12 per cent, penalty, is not inconsistent 
 with the act of 18S7. Commonwealth's Appeal (Fagely's Estate) 128 
 Pa. St. 612, 18 Atl. 3S6; In re Banks' Estate, 5 Pa. Co. Ct. R. 614. See 
 these acts considered and explained as to the rate of interest, 
 Mellon's Appeal, 114 Pa. St. 570, 573. 8 Atl. 1S3; In re Del Busto's 
 Estate, 45 Leg. Int. 474; 23 Wkly. Notes Cas. Ill; Commonwealth's 
 Appeal (Cooper's Estate) 127 Pa. St. 435, 17 Atl. 1096. 
 
 1*1 Commonwealth's Appeal (Cooper's Estate) supra. And see In 
 re Wharton's Estate, 10 Wkly. Notes Cas. 106; In re King's Estate, 
 11 Phila. 26; In re Brewer's Estate, 16 Pittsb. Leg. J. (N. S.) 114. 
 
 1*2 Sprankle v. Com. (1884) 2 Walk. (Pa.) 420, citing Com. v. Eber- 
 vale Coal Co., 2 Pears. (Pa.) 421; Easton Bank v. Com., 10 Pa. St. 
 451. But see In re Piatt's Estate (Suit.; 1894) 29 N. Y. Supp. 396. 
 
 14 3 Commonwealth's Appeal (1889) 128 Pa. St. 603, IS Atl. 3S0. 
 (412)
 
 Ch. 8] REMEDY AND PRACTICE. § 08 
 
 executors, the judgment bears interest from the expiration 
 of one year after the date of decedent's death. 144 
 
 Litigation to toll the liability of an estate for penalty for 
 nonpayment of the tax, after the expiration of the year, 
 must be such as withholds the real and personal estate from 
 the parties entitled thereto. 145 
 
 A controversy between rival claimants under a deed and 
 will will not toll the penalty, nor does litigation among the 
 distributees toll the penalty. 140 
 
 Where, under these statutes, there has been "an unavoid- 
 able cause of delay" or necessary litigation in the settlement 
 of the estate, the penalty for delay in payment of the tax 
 cannot be imposed, but in such cases only 6 per cent, inter- 
 est is recoverable on the tax from the end of the year suc- 
 ceeding decedent's death; 147 and by the New York stat- 
 ute 148 the penalty of 10 per cent, imposed for the nonpay- 
 ment of the tax is likewise not chargeable in such cases. 
 
 Under the act of 1S87, 149 no interest or penalty was 
 chargeable during the first 18 months after decedent's death. 
 From that time to the entry of the order fixing the tax, 
 
 I** In re Small's Estate (1S92) 151 Pa. St. 1, 25 Atl. 23. 
 
 145 in re Small's Estate, supra. 
 
 146 in re Maris' Estate (1893) 50 Leg. Int. 45S; 14 Pa. Co. Ct. R. 
 171; 3 Pa. Dist. R. 33. 
 
 i4- Commonwealth's Appeal (Fagely's Estate) supra; In re Banks' 
 Estate, supra; In re McKean's Estate, 12 Pittsb. Leg. J. (N. S.) 299, 
 300; Mellon's Appeal, supra; Com. v. Bailsman, 10 Lane. Bar (Pa.) 
 1S9; Commonwealth's Appeal (Avery's Estate) 34 Pa. St. 204; In re 
 Prout's Estate, 53 Hun, 541, 6 N. Y. Supp. 457; Id., 117 N. Y. 650, 
 22 N. E. 1132; In re Stewart, 131 N. Y. 274, 30 N. E. 1S4. As to rate 
 of penalty under acts of congress, and when actions to recover back 
 penalty erroneously paid is not barred by statute of limitation, see 
 Wright v. Blakeslee, 101 U. S. 174. 
 
 i4s Appendix, I. a., Laws 1887, §§ 4, 5. See these provisions ex- 
 plained per Van Brunt, P. J., In re Prout's Estate, supra; In re Vas- 
 sal-, 127 N. Y. S, 27 N. E. 394. 
 
 14 9 Laws N. Y. 1S87, c. 713, § 4. 
 
 (413)
 
 § 68 REMEDY AND PRACTICE. [Ch. 8 
 
 interest at the rate of 6 per cent, is chargeable, and there- 
 after the penalty of 10 per cent, is imposed. 150 
 
 Under the New York act of 1S92, 151 if the tax is paid 
 within six months from the accruing thereof, a discount of 
 5 per cent, is allowed and deducted. If the tax is not paid 
 within 18 months from the accruing thereof, interest shall 
 be charged and collected thereon at the rate of 10 per cent, 
 per annum from the time the tax accrued, unless, by reason 
 of claims made upon the estate, necessary litigation, or other 
 unavoidable cause of delay, such tax cannot be determined 
 and paid, in which case interest at the rate of 6 per cent, 
 per annum shall be charged upon such tax from the accrual 
 thereof until the cause of such delay is removed, after which 
 10 per cent, shall be charged. 
 
 The burden, however, under this clause of the statute, 
 rests upon the party claiming exemption from penalty to 
 show that he comes within the provisions of the act, namely, 
 that the settlement of the estate has been delayed by nec- 
 essary litigation, or other unavoidable cause, and that, there- 
 fore, he is not in a condition to settle the estate, or to pay 
 the tax, 152 
 
 Where decedent's estate largely consisted in business en- 
 terprises in partnership with others, and the executor did 
 not receive the proceeds of these investments, but they went 
 to swell the corpus of the estate until final settlement, and 
 the transactions were so complicated that it was unsafe for 
 the executor to estimate what amount would be subject to 
 the tax, and the appraisers themselves reduced their first 
 report of the taxable value by a large amount, it was held 
 that there was '"unavoidable cause" of delay for failing to 
 make the estimate within a year after decedent's death, and 
 
 iso See In re Roosevelt, 9 N. Y. Law J. 128; citing In re Prout's 
 Estate, supra. See In re Halsey, Id. 532. 
 is 1 Appendix, I. e, § 4. 
 
 152 in re Prout's Estate, 53 Hun, 544, G N. Y. Supp. 457. 
 (414)
 
 Ch. 8] REMEDY AKD PRACTICE. § 68 
 
 that the penalty could not be exacted, though such delay 
 continued 13 years. 1 -'" 
 
 But the fact that the parties were foreigners, and igno- 
 rant of the law, is no excuse for bringing them within the 
 exceptions of the act as regards penalty; 154 and it would 
 seem that the fact that all proceedings in relation to the es- 
 tate are stayed upon proceedings for revocation of probate 
 of the will of decedent prevents penalty, but does not pre- 
 vent the running of ordinary interest charged for nonpay- 
 ment of the tax. 155 
 
 Where, under the act of 1887, 156 the liability for penalty for 
 nonpayment of tax has been removed, interest is only 
 chargeable at the rate of G per cent, from the expiration of 
 18 months after decedent's death. Under the act of 1892, 157 
 where the penalty is removed interest is now chargeable 
 from the date of death. Under a saving clause, however, 
 this provision of the act does not apply to the estate of one 
 dying before the passage of the act. In such case the for- 
 mer act appiles. 158 
 
 The act of 1887 provided that the penalty should not be 
 imposed where, by reason of claims upon the estate, litiga- 
 tion or other unavoidable cause of delay, "the estate of any 
 decedent or a part thereof could not be settled at the end 
 
 153 Commonwealth's Appeal (Fagely's Estate) 12S Ta. St. 003, 18 
 Atl. 386. 
 
 is* In re McKean's Estate, supra; In re Piatt (1894) 29 N. Y. Supp. 
 396. As to what constitutes excusable delay and when executor 
 liable for interest, see In re Banks' Estate, 5 Pa. Co. Ct. R. 614, 616. 
 
 155 in re Stewart, 131 N. Y. 274, 30 N. E. 1S4; citing Code Civ. 
 Proc. §§ 2650, 406. 
 
 ise Laws 1S87, c. 713, §§ 4, 5. 
 
 157 Laws 1892, c. 399, § 4. 
 
 168 i n re Fayerweather, 143 N. Y. 119. 38 N. E. 278. See, also, as 
 to penalty and interest, In re Ferrer. N. Y. Law J. June 30, 1892, p. 
 1062; In re Hoghtaling, 8 N. Y. Law J. 450; In re Purroy, 7 N. Y. 
 Law J. 344; In re Cunningham, Id. 954. 
 
 (415)
 
 § 68 REMEDY AND PRACTICE. [Ch. 8 
 
 of 18 months from the death of decedent," which was a re- 
 enactment of the act of 1885, except that the period of set- 
 tlement was therein fixed at 1 year, instead of 18 months. 
 Under the act of 1892, the penalty is not charged where 
 claims, litigation, or other unavoidable cause of delay pre- 
 vents "the determination and payment of the tax." It also 
 changes the terms upon which the remission is granted. 
 In the prior acts the G per cent, interest ran from the ex- 
 piration of 18 months from accrual to the date when the 
 cause of delay was removed, while in the act of 1892, in 
 cases where the penalty is not interposed, interest at the 
 rate of G per cent, is charged from the date of death until 
 the cause of delay is removed. 
 
 Where decedent died about a year before the act of 1892 
 went into effect, interest and penalty are regulated by the 
 act of 1887, then in force, and in this respect the act of 1892 
 was not intended to be retroactive. 159 
 
 A petition for the remission of penalty is not sufficient 
 where it appears that there were sufficient moneys at all 
 times in the executor's hands to pay tax, independent of con- 
 tested claims. 160 
 
 In all applications to remit penalty, the date when the 
 cause of delay was removed should be fixed, 161 and the liti- 
 gation must be the necessary litigation referred to in the 
 act. 162 
 
 Penalty will be remitted where the tax has not been paid 
 owing to litigation necessary to determine the validity of a 
 trust. 163 
 
 159 in re Milne, 76 Hun, 32S, 27 N. Y. Supp. 729. Contra, holding 
 that in such cases the act of 1892 applied, see In re Acker, 9 N. Y. 
 Law J. 350; In re Colhoun, N. Y. Law J. July 15, 1S93. 
 
 i6o in re Hall, 12 N. Y. Law J. 781. 
 
 id In re Colhoun, N. Y. Law J. July 15, 1S93. 
 
 102 in re Sloane, 7 N. Y. Law J. 951; 111 re Cunningham, Id. 954; 
 In re Colhoun, N. Y. Law J. July 15, 1893. 
 
 io3 in re Hope, N. Y. Law J. Feb. 13, 1893. 
 (416)
 
 Ch. 8] REMEDY AND PRACTICE. § 69 
 
 The fact that the only asset out of which the tax could 
 be paid was a seat in the stock exchange, which the execu- 
 tors did not think it prudent to sell, and held for a rise, is 
 not sufficient to relieve from penalty. 164 It seems that 
 where, under decedent's will, there is a power of appoint- 
 ment, interest at the rate of 6 per cent, is only chargeable 
 from the time the power is exercised. No penalty can be 
 awarded in such case. 165 
 
 Where, pending an appeal 166 from the appraiser's report, 
 the parties liable to the tax under the decree of the lower 
 court make voluntary payment of it, this does not estop the 
 state from prosecuting the appeal, and recovering interest 
 upon the tax to the date of payment. 167 
 
 § 69. Retroactive, Amendatory, and Repealing 
 
 Statutes. 168 
 
 The question as to whether estates vesting or undistrib- 
 uted before the passage of the law become subject to taxa- 
 tion seems to be purely one of legislative intent. 
 
 In England the "succession duty act" is in many respects 
 plainly retroactive, as well as prospective, in its operations; 
 but in this country retroactive statutes are not generally 
 
 is* in re Colhoun, N. Y. Law J. July 15, 1893. 
 
 las in re Purroy, N. Y. Law J. March 6, 1892, citing In re Stewart, 
 13 N. Y. 274, 30 N. E. 184; Id. (Suit.) 10 N. Y. Supp. 15; In re Cun- 
 ning-ham, 7 N. Y. Law J. 954. 
 
 166 ?ee practice on such appeals. Chapter 5, § 55. 
 
 167 Commonwealth's Appeal (Fagely's Estate) 128 Pa. St 603, 
 7.8 Atl. 386. As to effect of receipt in full for tax given by state, see 
 chapter 7, § 63, note 146; In re Brewer's Estate, 16 Pittsb. Leg. J. 
 (N. S.) 114; 15 Pittsb. Leg. J. (N. S.) 435; Commonwealth's Appeal, 
 supra; In re Keenan (Surr.) 5 N. Y. Supp. 200; In re Vanderbilt's 
 Estate (Suit.) 10 N. Y. Supp. 239. 
 
 lessee the retroactive New York act of 1892, c. 399, § 1. subd. 3; 
 acts of congress and English statutes discussed in chapter 6, § 58, 
 subds. 3, f. 
 
 LAW ENHER. — 27 (417)
 
 § 69 REMEDY AND PRACTICE. [Ch. 8 
 
 favored, and the statutes are held to apply only to property 
 passing upon the death of a decedent occurring after the 
 particular statute went into effect. Acts, however, which 
 impose a tax upon estates vesting or undistributed before 
 such acts became operative, though retroactive, are held 
 to be constitutional. 169 
 
 But a retroactive operation will not be given by construc- 
 tion, so as to subject to the tax estates passing prior to 
 the passage of the act, though they be subject to life estates 
 which do not fall until after the statute became opera- 
 tive. 170 
 
 Under this rule, it has been held in New York that prop- 
 erty conveyed by irrevocable deed of trust to trustees to 
 pay the income to the grantor during life, with remainder 
 over to collateral heirs after her death, which was executed 
 and took effect before the passage of the act, is not liable 
 to taxation, though the grantor died afterwards. 171 This 
 holding, in view of subsequent cases, is, however, doubtful.* 
 
 So, as the tax is generally imposed upon the estate owned 
 by the decedent passing at the time of death, interest or 
 income in the nature of increase or accretions to the estate 
 subsequently arising is not liable. 172 
 
 There are, however, cases which seem to be exceptions 
 to this rule, as in the case of powers of appointment not 
 
 169 Chapter 2, § 24; Carpenter v. Pennsylvania, 17 How. 456; 
 Attorney General v. Middleton, 3 Hurl. & N. 125; In re Short's 
 Estate, 16 Pa. St. 66. 
 
 i7o Folsom v. U. S., 21 Fed. 37; Blake v. McCartney, 4 Cliff. 101, 
 Fed. Cas. No. 1498; Succession of Oyon, 6 Rob. (La.) 504; Succession 
 of Deyraud, 9 Rob. (La.) 357; Carpenter v. Pennsylvania, supra; In 
 re Cogswell, 4 Dem. Sur. 248; In re Hendricks (Suit.) 3 N. Y. Supp. 
 2S1. 
 
 i"i In re Hendricks, supra. 
 
 * See In re Lines' Estate, 155 Pa. St. 388. 26 Atl. 728. 
 
 172 in re Miller's Estate, 45 Leg. Int. 175; Com. v. Freedley, 21 
 Pa. St. 33-36; Commonwealth's Appeal (Cooper's Estate) 127 Pa. 
 (418)
 
 Cll. 8] REMEDY AND PRACTICE. § 69 
 
 executed until long after testator's death; 173 and in Eng 
 land, under the peculiar provisions of the statute, a tax hns 
 been allowed upon the subsequent increase in value of prop- 
 erty already once assessed. 174 
 
 Where, by the terms of testator's will, the first year's in- 
 come is added to principal, and both principal and income 
 applied, indiscriminately and without distinction, to the 
 payment of debts and legacies, the collateral tax accrues 
 upon so much of the corpus as has thus been preserved to 
 pass from testator to his collateral heirs. 175 
 
 So, generally, the rate of the tax is that imposed or fixed 
 at the time the estate passed and became subject to the 
 tax, and not that imposed by subsequent statute. 176 
 
 In New York, by statute, and doubtless in many other 
 states, the common-law rule that a statute was deemed to 
 date and take effect as of the first day of the session at 
 which it was passed 177 is now abrogated; 178 and in that 
 state every law, unless a different time shall be prescribed 
 therein, commences and takes effect throughout the state 
 on, and not before, the 20th day after the day of its final 
 passage, as certified by the secretary of state. 179 
 
 St. 435, 17 Atl. 1094, affirming 5 Parker, Cr. R. 275; Attorney General 
 v. Sefton, 11 H. L. Cas. 257-269. 
 
 its Chapter 6, § GO. See In re Stewart, 131 N. Y. 274, 30 N. E. 
 184; Id. (Surr.) 10 N. Y. Supp. 15. 
 
 174 gee chapter 5, § 55; Attorney General v. Dardier, L. R. 11 Q. 
 B. Div. 16. 
 
 17 5 in re Williamson's Estate, 143 Pa. St. 150, 22 Atl. 836. Con- 
 tra, In re Floyd, 4 N. Y. Law J. 1378. 
 
 176 com. v. Eckert. 53 Pa. St. 102; Com. v. Smith, 20 Pa. St. 100; 
 In re King's Estate, 11 Phila. 26; In re James' Appeal, 2 Del. Co. 
 Rep. 164. 
 
 177 Latless v. Holmes, 4 Term R. 660; Panter's Case, 6 Brown, 
 Pari. Cas. 486. 
 
 17 s In re Kemeys, 56 Hun, 117, 9 N. Y. Supp. 182. See, also, In re 
 Howe, 4S Him, 236, affirmed 112 N. Y. 103, 19 N. E. 513. 
 17 9 1 Rev. St. N. Y. (7th Ed.) p. 433, § 12. 
 
 (419)
 
 § 69 REMEDY AND PRACTICE. [Ch. 8 
 
 This provision has been considered in connection with 
 acts imposing collateral inheritance taxes, and it has been 
 held that although the act of 1885 contained the words, 
 "after the passage of this act," the law did not take effect 
 until 20 days after its passage, and that, therefore, prop- 
 erty passing by will of one dying after the passage of the 
 act, but prior to the da} 7 upon which it took effect, was not 
 liable to the tax. 180 So an act providing that "it shall 
 take effect immediately" does not apply to the estate of a 
 testator who died on the same day, but just before the act 
 was approved. 181 
 
 With regard to amendatory statutes, the rule seems to 
 be general that they have no retroactive force upon taxes 
 already due, unless clearly intended by the legislature, as 
 the portions of the amended sections which are merely 
 copied without change are not to be considered as repealed 
 and again enacted, but to have been the law all along, and 
 the new parts or changed portions are not to be taken as 
 the law at any time prior to the passage of the amended 
 act. 182 
 
 When a statute amends a former statute "so as to read as 
 follows," it operates as a repeal by implication of inconsist- 
 ent provisions in the former law, and of provisions therein 
 omitted in the latter. When, however, the amendatory act 
 re-enacts provisions in the former law, either ipsissimis 
 verbis, or by the use of equivalent though different words, 
 the law will be regarded as having been continuous; and 
 the new enactment, as to such parts, will not operate as a 
 
 iso in re Howe, supra, overruling In re Chardavoyne, 5 Dem. 
 Sur. 466. In re Cac:er, 46 Hun, 600, is also overruled on this point. 
 See 111 N. Y. 347, 18 N. E. S60, and In re Kerneys, supra. 
 
 isi Laws 1891, c. 215; In re Dreyfous (1S92; Surr.) 18 N. Y. Supp. 
 707. 
 
 182 in re Arnett, 49 Hun, 599, 2 N. Y. Supp. 42S; In re Miller's 
 Estate, 110 N. Y. 223, 18 N. E. 139, citing Ely v. Holton, 15 N. Y. 595. 
 (420)
 
 Ch. 8] REMEDY AND PRACTICE. 
 
 repeal, so to affect a duty accrued under the prior law, al- 
 though as to all new transactions, the later law will be 
 referred to as the ground of obligation. Accordingly, the 
 direct tax act of 1S91, 183 which amended, "so as to read 
 as follows," the first section of the act of 18S5, 18 * did not 
 operate to prevent the subsequent assessment and collec- 
 tion of a tax on the estate of a decedent who died interme- 
 diate the act of 1887 and that of 1801. 185 
 
 The liability to the tax of the estates of decedents dying 
 previous to its passage is continued by Laws 1892, 186 and 
 proceedings instituted thereunder may be continued there- 
 after under the prior law. All proceedings instituted 
 thereafter are regulated, however, by the last act, though 
 the law in existence at decedent's death must govern as 
 to rights accrued and liabilities incurred. 187 
 
 So where an amendatory act was passed by the legisla- 
 ture, purporting to exempt adopted children theretofore 
 liable, which, it was declared, should "take effect immedi- 
 ately," and subsequent to its passage, but before being ap- 
 proved by the executive, a decree was made taxing adopt- 
 ed children, it was held that the decree was not vitiated by 
 the amendatory statute, as it did not become a law at the 
 time of its passage, but only subsequently, and from the 
 time of its approval by the executive. 188 
 
 iss Laws N. Y. 1S91, c. 215. 
 
 is* Laws 18S5, c. 483. 
 
 iss i n re Prime (1S93) affirmed 64 Hun, 50, 18 N. Y. Supp. 603, and 
 136 N. Y. 353, 32 N. E. 1091, distinguishing Ely v. Holton, 15 N. Y. 
 595. 
 
 iss Chapter 399. 
 
 187 in re Richardson, N. Y. Law J. Jan. 31, 1S93; In re Sterling's 
 Estate (1S94; Surr.) 30 N. Y. Supp. 3S5, citing In re Miller, 19 N. 
 Y. St. Rep. 246. 
 
 iss in re Kemeys, supra; In re Howe, 4S Hun, 236, affirmed 112 
 N. Y. 103, 19 N. E. 513; In re Hughes, 2 N. Y. Law J. (July 27, 1889) 
 817; In re Dreyfous, supra. 
 
 (421)
 
 § 69 REMEDY AND PRACTICE. [Ch. 8 
 
 Where, however, the assessment under the prior law was 
 made after the passage of the act relieving adopted chil- 
 dren, or those standing in the "mutually acknowledged re- 
 lation," they are not subject to the tax. 189 
 
 So, where adopted children were exempted by a stat- 
 ute 190 which was declared to be amendatory of the prior 
 law, it was held not retroactive, and that such adopted 
 children as were liable under the former act 191 continued 
 so liable, and the rights of the state were not affected by 
 the fact that the tax had not been paid at the time of the 
 passage of the amendatory act. 192 
 
 The New Jersey act 193 does not affect real estate devised 
 previous to the passage of the act. 194 
 
 Nor does such a statute affect the vested rights of the 
 state against such children theretofore liable, although pro- 
 ceedings to collect the tax were not commenced until after 
 the amended statute went into effect. 195 
 
 It seems now, however, that all adopted children and 
 
 189 In re Thomas, 3 Misc. Rep. 3S8, 24 N. Y. Supp. 713, distinguish- 
 ing In re Kemeys, supra. 
 
 190 Appendix, Laws 1887, c. 713, § 1. See, upon this subject, chap- 
 ter 3, § 6. 
 
 i9i Laws 1885. c. 483. 
 
 192 in re Miller, supra, affirming 47 Hun, 394; In re Brooks, 6 
 Dem. Sur. 165; In re Spencer's Estate (Suit.) 4 N. Y. Supp. 395. 
 
 193 Laws 1894, c. 210, Appendix, II. 
 
 194 in re Dobermiller, 17 N. J. Law J. 37S. 
 
 i»5 In re Kemeys (per Barrett, J., reviewing cases) 56 Hun, 117, 
 9 N. Y. Supp. 182, distinguished in Re Thomas, 3 Misc. 388, 24 N. 
 Y. Supp. 713. For other authorities, see In re Arnett, 49 Hun, 599, 
 2 N. Y. Supp. 428; In re Kissam's Estate (Suit.) 3 N. Y. Supp. 
 135; In re Ryan's Estate (Surr.) 3 N. Y. Supp. 136; In re Cager, 
 111 N. Y. 347, IS N. E. S66; In re Brooks, 6 Dem. Sur. 165; In 
 re Hendricks' Estate (Surr.) 3 N. Y. Supp. 281; In re Thompson, 6 
 Dem. Sur. 211; In re Shaw's Estate, N. Y. Daily Reg. April 3, 1SS9. 
 Contra, In re Cager, 46 Hun, 660, overruled in 111 N. Y. 347, 4 N. 
 E. 713; In re Spencer's Estate (Suit.) 4 N. Y. Supp. 395. 
 (422),
 
 Ch. 8] REMEDY AND PRACTICE. \ 69 
 
 others in the same class are exempted in New Y<nk,'" ; 
 where no assessment was made against them, by order of 
 the surrogate, at the time of the passage of the last-named 
 act 197 
 
 So the act of 1890, 198 relieving certain charitable and 
 religious institutions from the tax, being clearly prospective 
 in its operation, and applicable only to future cases, a tax 
 due before the act went into operation 19 ° may still be en- 
 forced. 200 
 
 Where, however, the statute under which it is sought to 
 collect the tax has not merely been amended, but abso- 
 lutely repealed, and the remedy taken away, all proceed 
 ings under the prior act fall, and the tax cannot afterwards 
 be collected. 201 
 
 196 Laws N. Y., Appendix, I. a, § 25. as amended by Laws 1889, 
 c. 479. The children of such adopted children are, however, not 
 within the exemption of the statute. In re Bird's Estate (Surr.) 11 
 N. Y. Supp. 895. In Connecticut they are relieved by express pro- 
 vision of the statute, supra, chapter 3, § 34, subd. g. 
 
 197 Laws 1S89, supra; In re Kemeys, 56 Hun, 117, 9 N. Y. Supp. 
 182; In re Hughes' Estate, supra; In re Thome's Estate, N. Y. 
 Law J. Jan. 21, 1890; In re Thomas, supra. 
 
 i9s Chapter 553, Appendix, I. b. 
 
 199 June 7, 1S90. 
 
 200 Sherrill v. Christ Church of Pougkkeepsie, 31 N. Y. St. Rep. 
 S9G, 121 N. Y. 701, 25 N. E. 50, reversing In re Van Kleeck, 55 Hun, 
 472. See, also, Estate of Minturn, 3 N. Y. Law J. S04. As to the 
 effect of the act of Pennsylvania of 1887 upon prior statutes of that 
 state, see Commonwealth's Appeal (Pagely's Estate) 128 Pa. St. 
 612, 18 Atl. 386; In re Del Busto's Estate, 23 Wkly. Notes Cas. Ill; 
 Commonwealth's Appeal (Cooper's Estate) 127 Pa. St. 435, 17 Atl. 
 1094; Commonwealth's Appeal (Bittinger's Estate) 129 Pa. St. 338, 
 IS Atl. 132; Mellon's Appeal, 114 Pa. St. 570, 8 Atl. 183; In re 
 Banks' Estate, 5 Pa. Co. Ct. R. 614; In re Goldstein's Estate, 16 
 Phila. 319; Wayne's Estate, 2 Pa. Co. Ct. R. 93; Fox v. Com., 16 
 Grat. 1. 
 
 2oi in re Arnett, 49 Hun, 603, 2 N. Y. Supp. 42S; Knox v. Bald- 
 win, SO N. Y. 610; Nash v. Bank, 105 N. Y. 243, 11 N. E. 916; In 
 re Prime, 136 N. Y. 347, 362, 32 N. E. 1091; People v. Supervisors, 67 
 
 (423)
 
 § 69 REMEDY AND PRACTICE. [Ch. 8 
 
 Where, however, there is a saving clause as to taxes ac- 
 cruing under vested interests prior to the repealing act, 
 such taxes may be assessed and collected afterwards. 202 
 
 Where the decedent died before the repealing act, and 
 the legatee or successor did not come into possession, nor 
 his rights accrue, until after the repealing act went into 
 effect, it seems the tax is not saved by the saving clause. 203 
 
 N. Y. 109; Bailey v. Mason, 4 Minn. 550 (Gil. 430); Dunwell v. 
 Bidwell, 8 Minn. 34 (Gil. 18); In re North Canal Street Road, 10 Watts 
 (Pa.) 351; Cooley, Tax'n (2d Ed.) p, 18; Fox's Adm'r v. Com., 16 Grat. 
 1 ; Eyre v. Jacob, 14 Grat. 422. See Quessart v. Canonge, 3 La. 560, 
 and Arnaud v. Holland, Id. 337, where it was held that where the 
 tax becomes due before the repealing act the rights of the state 
 under the law existing at the time remain unaffected by the repeal- 
 ing act. 
 
 202 Act Cong. 1870 (16 Stat. 261, § 17), repealing the legacy and 
 succession acts, contained a clause saving "all taxes properly as- 
 sessed or liable to be assessed, or accruing under the provisions of 
 foi-iner acts or drawbacks, or which may hereafter accrue under 
 said acts," etc. See, construing this section, May v. Slack, 16 Int. 
 Rev. Rec. 134, Fed. Cas. No. 9,336; U. S. v. Townsend, 8 Fed. 306; 
 Clapp v. Mason, 94 U. S. 589. 
 
 203 Mason v. Sargent, 104 U. S. 689. See Id., 23 Int. Rev. Rec. 
 155, Fed. Cas. No. 9,253; Sturges v. U. S., 117 U. S. 363, 6 Sup. Ct. 
 767; Helman v. U. S., 15 Blatchf. 13, Fed. Cas. No. 6,341; U. S. v. 
 New York Life Ins. & Trust Co., 9 Ben. 413, Fed. Cas. No. 15,873; 
 Clapp v. Mason, supra; U. S. v. Hazard, 8 Fed. 380; U. S. v. Kelley, 
 28 Fed. 845; U. S. v. Brice, 8 Fed. 381. See U. S. v. Rankin, Id. 872, 
 where the various conflicting decisions under the legacy and succes- 
 sion acts of congress are considered by Treat, District Judge. Aud 
 see, generally, Com. v. Standard Oil Co., 101 Pa. St. 149. 
 
 (424)
 
 APPENDIX OF STATUTES, 
 
 I. 
 
 NEW YORK. 1 
 
 
 (a) Laws 1887, c. 713, with Amendments to 1802. 
 
 
 (b) Laws 1800, c. 553, as to Charitable Corporations. 
 
 
 (c) Laws 1892, c. 169. 
 
 
 (d) Laws 1892, c. 443. 
 
 
 (e) "Transfer Tax Act, "Laws 1892, c. 399, with Amendments 
 
 
 to 1895. 
 
 
 (f) Special Acts. 
 
 II. 
 
 NEW JERSEY. 
 
 III. 
 
 PENNSYLVANIA. 
 
 IV. 
 
 MASSACHUSETTS. 
 
 
 (a) Laws 1891, c. 425, with Amendments to 1895. 
 
 
 (b) Laws 1893, c. 432. 
 
 
 (c) Laws 1895, c. 307. 
 
 V. 
 
 MAINE. 
 
 VI. 
 
 OHIO. 
 
 
 (a) Laws 1893, p. 14, as Amended by Laws 1894, p. 169. 
 
 
 (b) Laws 1894, p. 166. 
 
 VII. 
 
 CONNECTICUT. 
 
 VIII. 
 
 MARYLAND. 
 
 IX. 
 
 CALIFORNIA. 
 
 X. 
 
 ILLINOIS. 
 
 I. NEW YORK STATUTES. 
 
 (a) Laws 1887, Ch. 713, with Amendments to 1892. 
 
 'An act to amend chapter four hundred and eighty-three of 
 the Laws of Eighteen Hundred and Eighty-Five, entitled 
 "An act to tax gifts, legacies and collateral inheritances 
 in certain cases." 
 Passed June 25, 1887; three-fifths being present. 
 
 1 (The statute now in force in the state of New York is chapter 399 of 
 the Laws of 1892, known as the "Transfer Tax Act. " By section 23 of 
 this act, most of the earlier statutes have been repealed as follows: 
 Laws 1835. c. 483; Laws 1887, c. 713; Laws 1889, c. 307; Laws 1889, c. 
 479; Laws 1891, c. 215. For the benefit of the profession and in order 
 that all the earlier statutes may be readily consulted, it has been deemed 
 prudent to retain these statutes, beginning with that of 1887.) 
 
 LAW INHEB. (425)
 
 426 APPENDIX OF STATUTES. [N.Y.,I. a. 
 
 The people of the state of New York, represented in senate 
 and assembly, do enact as follows: 
 
 Section 1. Chapter four hundred and eighty-three of the 
 Laws of Eighteen Hundred and Eighty-Five, entitled ''An act 
 to tax gifts, legacies and collateral inheritances in certain 
 cases," is hereby amended so as to read as follows: 
 
 State tax upon certain property, &c, passed by- 
 will or intestate laws — Rate of tax and to whom 
 payable — Estates under $500 exempt. 
 
 § 1. After the passage of this act 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, or any interest there- 
 in, or income therefrom which shall be transferred by deed, 
 grant, sale or gift, made or intended to take effect in posses- 
 sion or enjoyment after the death of the grantor or bargain- 
 or, to any person or persons, or to any body politic or corpo- 
 rate, in trust or otherwise, or by reason whereof any person 
 or body politic or corporate shall become beneficially entitled 
 in possession or expectancy, to any property or to the income 
 thereof, other than to or for the use of his or her father, 
 mother, husband, wife, child, brother, sister, the wife or 
 widow of a son, or the husband of a daughter, or any child 
 or children adopted as such in conformity with the laws of 
 the state of New York, or any person to whom the deceased 
 for not less than ten years prior to his or her death stood 
 in the mutually acknowledged relation of a parent, and any 
 lineal descendant of such decedent born in lawful wedlock, 
 or the societies, corporations and institutions now exempted 
 by law from taxation by reason whereof any such person 
 or corporation shall become beneficially entitled, in posses- 
 sion or expectancy, to any such property, or to the income 
 thereof, shall be and is subject to a tax of five dollars on 
 every hundred dollars of the clear market value of such 
 property, and at and after the same rate for any less amount, 
 to be paid to the treasurer of the proper county, and in the 
 city and county of New York to the comptroller thereof, for 
 the use of the state, and all administrators, executors and 
 trustees, shall be liable for any and all such taxes until the 
 same shall have been paid as hereinafter directed, provided 
 that an estate which may be valued at a less sum than five 
 hundred dollars shall not be subject to such duty or tax.
 
 N. Y.,I. a.] APPENDIX OF STATUTES. 427 
 
 [See Laws 1S92, c. 1G9, amending this section. See post, 
 subd. c] 
 
 Appraisal of property after death of decedent in 
 certain cases — Duty of surrogate as to valuation 
 — Tax to be immediately payable thereon — Per- 
 sons, &c, beneficially interested may give bond 
 therefor, &c. — Verified return of property to sur- 
 rogate. 
 
 § 2. When any grant, gift, legacy or succession upon which 
 a tax is imposed by section first of this act, shall be an estate, 
 income or interest for a term of years or for life, or determi- 
 nable upon any future or contingent event, or shall be a re- 
 mainder, reversion or other expectancy, real or personal, the 
 entire property or fund, by which such estate, income or 
 interest is supported, or of which it is a part, shall be ap- 
 praised immediately after the death of the decedent, at what 
 was the fair and clear market value thereof at the time of the 
 death of the decedent, in the manner hereinafter provided, 
 and the surrogate shall thereupon assess and determine the 
 value of the estate, income or interest subject to said tax, in 
 the manner recorded in section thirteen of this act, and the 
 tax prescribed by this act shall be immediately due and 
 payable to the treasurer of the proper county, and in the city 
 or county of New York to the comptroller thereof, and to- 
 gether with the interest thereon, shall be and remain a lien 
 on said property until the same is paid; provided that the 
 person or persons, or body politic or corporate beneficially 
 interested in the property chargeable with said tax, may 
 elect not to pay the same until they shall come into the ac- 
 tual possession or enjoyment of such property and in that case 
 such person or persons or body politic or corporate, shall 
 give a bond to the people of the state of New York in a pen- 
 alty of three times the amount of the tax arising upon per- 
 sonal estate, with such sureties as the surrogate of the proper 
 county may approve conditioned for the payment of said 
 tax and interest thereon at such time or period as they or 
 their representatives may come into the actual possession 
 or enjoyment of such property, which bond shall be filed in 
 the office of the surrogate of the proper county; provided, 
 further, that such person shall make a full Verified return 
 of such property to said surrogate, and file the same in his 
 office within one year from the death of the decedent, and 
 within that period enter into such security and renew the 
 same every five years.
 
 428 APPENDIX OF STATUTES. [N. Y.,I. a. 
 
 Executors or trustees, commissions of, when liable 
 to tax. 
 
 § 3. Whenever a decedent appoints or names one or more 
 executors or trustees and makes a bequest or devise of prop- 
 erty to them in lieu of their commissions or allowances, 
 which otherwise would be liable to said tax, or appoints 
 them his residuary legatees, and said bequest, devises or resid- 
 uary legacies exceed what would be a reasonable compensa- 
 tion for their services, such excess shall be liable to said tax, 
 and the surrogate's court having jurisdiction in the case 
 shall fix such compensation. 
 
 Taxes, "when due and payable — Interest thereon. 
 
 § 4. All taxes imposed by this act, unless otherwise here- 
 in provided for, shall be due and payable at the death of the 
 decedent, and if the same are paid within eighteen months, 
 no interest shall be charged and collected thereon, but if 
 not so paid, interest at the rate of ten per cent, per annum 
 shall be charged and collected from the time said tax ac- 
 crued; provided, that if said tax is paid within six months 
 from the accruing thereof a discount of five per cent, shall 
 be allowed and deducted from said tax, and in all cases 
 where the executors, administrators or trustees do not pay 
 such tax within eighteen months from the death of the de- 
 cedent, they shall be required to give a bond in the form and 
 to the effect prescribed in section two of this act for the 
 payment of said tax, together with interest. 
 
 Penalty for non-payment of tax — When and how 
 chargeable. 
 
 § 5. The penalty of ten per cent, per annum imposed by 
 section four hereof, for the nonpayment of said tax, shall 
 not be charged where in cases by reason of claims made 
 upon the estate, necessary litigation or other unavoidable 
 cause of delay, the estate of any decedent, or a part thereof, 
 cannot be settled at the end of eighteen months, from the 
 death of the decedent, and in such cases only six per cent, 
 per annum shall be charged upon the said tax, from the ex- 
 piration of said eighteen months until the cause of such de- 
 lav is removed.
 
 N. Y.,I. a.] APPENDIX OF STATUTES. 429 
 
 Deductions of tax from legacies by trustees, etc. — 
 Payments, how made if legacy is not in money 
 — Tax, how enforced — Other provisions as to 
 limited bequests, etc. 
 
 § 6. Any administrator, executor or trustee having in 
 
 charge, or trust, any legacy or property for distribution, sub- 
 ject to the said tax, shall deduct the tax therefrom, or if 
 the legacy or property be not money, he shall collect the tax 
 thereon upon the appraised value thereof from the legatee 
 or person entitled to such property, and he shall not de- 
 liver, or be compelled to deliver, any specific legacy or prop- 
 erty subject to tax to an}' person until he shall have col- 
 lected the tax thereon; and whenever any such legacy shall 
 be charged upon or payable out of real estate, the heir or 
 devisee, before paying the same, shall deduct said tax there- 
 from, and pay the same to the executor, administrator or 
 trustee, and the same shall remain a charge on such real 
 estate until paid, and the payment thereof shall be enforced 
 by the executor, administrator or trustee in the same man- 
 ner that the payment of such legacy might be enforced; if, 
 however, such legacy be given in money to any person for 
 a limited period, he shall retain the tax upon the whole 
 amount, but if it be not in money, he shall make application 
 to the court having jurisdiction of his accounts, to make an 
 apportionment, if the case require it, of the sum to be paid 
 into his hands by such legatees, and for such further order 
 relative thereto as the case may require. 
 
 Sale of property of decedent to pay tax. 
 
 § 7. All executors, administrators aud trustees shall have 
 full power to sell so much of the property of the decedent 
 as will enable them to pay said tax, in the same manner as 
 they may be enabled by law 7 to do for the payment of debts 
 of their testators and intestates, and the amount of said tax 
 shall be paid as hereinafter directed. 
 
 Payments, -when to be made to county treasurer — 
 Transmission of receipt therefor to state comp- 
 troller — Return of receipt, countersigned as 
 voucher to executor, etc. 
 
 § 8. Every sum of money retained by an executor, admin- 
 istrator or trustee, or paid into his hands, for any tax on any 
 property, shall be paid by him within thirty days thereafter, 
 to the treasurer of the proper county, or in the city and
 
 430 APPENDIX OF STATUTES. [N.Y.,I. a. 
 
 county of New York, to the comptroller thereof, and the said 
 treasurer or comptroller shall give, and every executor, ad- 
 ministrator or trustee shall take duplicate receipts from him 
 of such payment, one of which receipts he shall immediately 
 send to the comptroller of the state, whose duty it shall be 
 to charge the treasurer or comptroller so receiving the tax, 
 with the amount thereof, and shall seal said receipt with 
 the seal of his office, and countersign the same and return 
 it to the executor, administrator or trustee, whereupon it 
 shall be a proper voucher in the settlement of his accounts, 
 but an executor, administrator or trustee shall not be en- 
 titled to credits in his accounts, nor be discharged from lia- 
 bility for such tax, unless he shall produce a receipt so 
 sealed and countersigned by the comptroller or a copy there- 
 of certified by him. 
 
 Executor, etc., to notify county treasurer, etc., as 
 to passing of real estate. 
 
 § 9. Whenever any of the real estate of which any dece- 
 dent may die seized shall pass to any body politic or cor- 
 porate, or to any person or persons other than his or her 
 father, mother, husband, wife, lawful issue, brother, sister, 
 wife or widow of a son, or husband of a daughter, or child 
 or children adopted by such decedent according to law, or 
 any person to whom the deceased for not less than ten years 
 prior to his or her death, stood in the mutually acknowl- 
 edged relation of a parent, or in trust for them, or some of 
 them, it shall be the duty of the executors, administrators 
 or trustees of such decedent, to give information thereof in 
 writing to the treasurer or comptroller of the county where 
 such real estate is situate, within six months after they un- 
 dertake the execution of their respective duties, or if the 
 fact be not known to them within that period, then within 
 one month after the same shall have come to their knowl- 
 edge. 
 
 Repayment of proportion of tax paid, in cases of 
 debts proven afterwards. 
 
 § 10. Whenever any debts shall be proven against the es- 
 tate of a decedent, after the payment of legacies or distri- 
 bution of property from which the said tax has been deduct- 
 ed, or upon which it has been paid, and a refund is made by 
 the legatee, devisee, heir or next of kin, a proportion of the 
 tax so paid shall be repaid to him by the executor, admin- 
 istrator or trustee, if the said tax has not been paid to the
 
 N. Y.,I. a.] APPENDIX OF STATUTES. 1-1 
 
 county treasurer, comptroller, or to the state treasurer, <>r 
 by them if it has been so paid. 
 
 Tax upon transfer of stocks by foreign executor, 
 etc. 
 
 § 11. Whenever any foreign executor or administrator shall 
 assign or transfer any stocks or loans in this state, stand 
 ing in the name of a decedent, or in trust for a decedent, 
 which shall be liable to the said tax. such tax shall be paid to 
 the treasurer or comptroller of the proper county on the trans- 
 fer thereof, otherwise the corporation permitting such trans- 
 fer shall become liable to pay such tax, provided that such 
 corporation had knowledge before such transfer that said 
 stocks or loans are liable to said tax. 
 
 Tax erroneously paid, refunding of. 
 
 § 12. When any amount of said tax shall have been paid 
 erroneously to the state treasurer, it shall be lawful for 
 him, on satisfactory proof rendered to the comptroller by 
 said county treasurer or comptroller of such erroneous pay- 
 ment, to refund and pay to the executor, administrator, per- 
 son or persons who have paid any such tax in error, the 
 amount of such tax so paid, provided that all such applica- 
 tions for the payment of such tax shall be made within five 
 years from the date of such payment. 
 
 Surrogate to appoint appraiser of certain estates — 
 Duty of appraiser — To report to surrogate — Sur- 
 rogate to fix cash, values of estates and tax there- 
 on — Rules of computation — Appeals from ap- 
 praisement — Compensation of appraiser. 
 
 § 13. In order to fix the value of property of persons whose 
 estates shall be subject to the payment of said tax, the sur- 
 rogate, on the application of any interested party, or upon 
 his own motion, shall appoint some competent person as 
 appraiser as often as, ancT whenever occasion may require, 
 whose duty it shall be forthwith to give such notice by mail 
 to all persons known to have or claim an interest in such 
 property, and to such persons as the surrogate may by order 
 direct, of the time and place he will appraise such property; 
 and at such time and place, to appraise the same at its fair 
 market value, and make a report thereof in writing to said 
 surrogate, together with such other facts in relation thereto 
 as said surrogate may by order require, to be filed in the
 
 432 APPENDIX OF STATUTES. [N. Y. , I. a. 
 
 office of such surrogate; and from this report the said sur- 
 rogate shall forthwith assess and fix the then cash value of 
 all estates, annuities and life estates or terms of years grow- 
 ing out of said estate, and the tax to which the same is lia- 
 ble, and shall immediately give notice thereof by mail to 
 all parties known to be interested therein, and the value of 
 every future or contingent or limited estate, income or in- 
 terest shall, for the purposes of this act, be determined by 
 the rule, method and standards of mortality and of value 
 which are employed by the superintendent of the insurance 
 department in ascertaining the value of policies of life in- 
 surance and annuities, for the determination of the liabil- 
 ities of life insurance companies, save that the rate of in- 
 terest to be assessed in computing the present value of all 
 future interests and contingencies shall be five per cent, 
 per annum; and the superintendent of the insurance depart- 
 ment shall, on the application of any surrogate, determine 
 the value of such future or contingent or limited estate, in- 
 come or interest, urjon the facts contained in such report, 
 and certify the same to the surrogate, and his certificate 
 shall be conclusive evidence that the method of computa- 
 tions adopted therein is correct. Any person or persons dis- 
 satisfied with such appraisement or assessment may appeal 
 therefrom to the surrogate of the proper county within sixty 
 days after the making and filing of such assessment, on pay- 
 ing or giving security approved by the surrogate to pay all 
 costs, together with whatever tax shall be fixed by said 
 court. The said appraiser shall be paid by the county 
 treasurer or comptroller out of any funds he may have in 
 his hands on account of said tax, on the certificate of the 
 surrogate, at the rate of three dollars per day for every day 
 actually and necessarily employed in said appraisement, to- 
 gether with his actual and necessary traveling expenses 
 including the fees paid such witnesses. The comptroller 
 of the city and county of New York shall retain out of any 
 funds he may have in his hands on account of said tax, a 
 sum of money sufficient to provide the surrogate in the city 
 and county of New York with a clerk appointed by said sur- 
 rogate who shall be known as the "collateral inheritance 
 and legacy tax clerk," and whose salary shall be two thous- 
 and, four hundred dollars a year, payable monthly, and a 
 further sum of money, not exceeding five hundred dollars a 
 year, to be used to pay the expenses of the said surrogate 
 necessarily incurred in the assessment and collection of said 
 tax, said amounts to be paid upon the certificates and
 
 N. Y., I. a.] APPENDIX OF STATUTES. 433 
 
 requisitions of said surrogate respectively. [Laws L889, <•. 
 307, as amended. See chapter 107, Laws ls!>2.] 
 
 Appraiser accepting bribe, how punished. 
 
 § 14. Any appraiser appointed by virtue of this act who 
 shall take any fee or reward from any executor, administra- 
 tor, trustee, legatee, next of kin or heir of any decedent, or 
 from any other person liable to pay said tax, or any portion 
 thereof, shall he guilty of a misdemeanor, and upon convic- 
 tion in any court having jurisdiction of misdemeanors, lie 
 shall be lined not less than two hundred and fifty dollars 
 nor more than five hundred dollars, and imprisoned not ex- 
 ceeding ninety days, and in addition thereto the surrogate 
 shall dismiss him from such service. 
 
 Jurisdiction of surrogate's court. 
 
 § 15. 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, or in the county of which the decedent was a resi- 
 dent at the time of his death, shall have jurisdiction to hear 
 and determine all questions in relation to the tax arising 
 under the provisions of this act, and the surrogate first ac- 
 quiring jurisdiction hereunder shall retain the same to the 
 exclusion of every other. 
 
 Citation to issue to person liable for tax, if remain- 
 ing unpaid — Proceedings thereupon — Decree, how 
 docketed and filed — Transcripts thereof, -when to 
 be furnished — County treasurer to notify district- 
 attorney of failure to pay tax — Duty of district- 
 attorney — Costs. 
 
 § 16. If it shall appear to the surrogate's court that any 
 tax accruing under this act has not been paid according to 
 law, it shall issue a citation citing the persons interested in 
 the property liable to the tax to appear before the court on 
 a day certain, not more than three months after the date of 
 such citation, and show cause why said tax should not be 
 paid. The service of such citation and the time, manner and 
 proof thereof, and fees therefor, and the hearing and deter- 
 mination thereon, and the enforcement of the determination 
 or decree shall conform to the provisions of the Code of Civil 
 Procedure, for the service of citations now issuing out of 
 surrogates' courts, and the hearing and determination there- 
 on and its enforcement. And the surrogate, or clerk of the 
 law inher. — 28
 
 434 APPENDIX OF STATUTES. [N. Y.,I. a. 
 
 surrogate's court, shall, upon the request of the district-at- 
 torney, treasurer of the county, or comptroller of the county 
 of New York, furnish, without fee, one or more transcripts 
 of such decree as provided in section twenty-five hundred 
 and fifty-three of the Code of Civil Procedure, and the same 
 shall he docketed and filed by the county clerk of any county 
 in the state without fee, in the same manner, and with the 
 same effect as provided by said section for filing and docket- 
 ing transcripts of decrees of such courts. 
 
 § 17. Whenever the treasurer or comptroller of any county 
 shall have reason to believe that any tax is due and unpaid 
 under this act, after the refusal or neglect of the persons 
 interested in the property liable to said tax to pay the same, 
 he shall notify the district-attorney of the proper county, 
 in writing, of such failure to pay such tax, and the district- 
 attorney so notified, if he have probable cause to believe the 
 tax is due and unpaid, shall prosecute the proceeding in the 
 surrogate's court in the proper county, as provided in section 
 sixteen of this act for the enforcement and collection of 
 such tax. All costs awarded by such decree, that may be 
 collected after the collection and payment of the tax, to the 
 treasurer or comptroller of the proper county, may be re- 
 tained by the district-attorney, for his own use. Such costs 
 shall be fixed by the surrogate in his discretion, but shall 
 not exceed in any case where there has not been a contest 
 the sum of $100, or where there has been a contest the sum 
 of $250. [As amended by Laws 1892, c. 168.] 
 
 Quarterly statements of surrogate and county clerk. 
 
 § 18. The surrogate and county clerk of each county shall, 
 every three months, make a statement in writing to the 
 county treasurer or comptroller of his county of the prop- 
 erty from which or the party from which he has reason to 
 believe a tax under this act is due and unpaid. 
 
 Payment of certain expenses of county treasurer. 
 
 § 19. Whenever the surrogate of any county shall certify 
 that there was probable cause for issuing a citation and tak- 
 ing the proceedings specified in section seventeen of this 
 act, the state treasurer shall pay or allow to the treasurer 
 or comptroller of any county all expenses incurred for serv- 
 ices of citation and his other lawful disbursements that have 
 not otherwise been paid.
 
 N. Y.,I. a.] APPENDIX OF STATUTES. 435 
 
 Surrogate's record, what to contain. 
 
 § 20. The comptroller of the state shall furnish to each 
 surrogate a book in which he shall enter the returns made 
 by appraisers, the cash value of annuities, life estates and 
 terms of years and other property fixed by him, and the tax 
 assessed thereon and the amounts of any receipts for pay- 
 ments thereon hied with him, which books shall be kept in 
 the office of the surrogate as a public record. 
 
 Payment of tax to state treasurer— Reports thereon 
 to comptroller — Interest upon unpaid amounts. 
 
 >i 21. The treasurer of each county and the comptroller of 
 the county of New York shall collect and pay the state treas- 
 urer all taxes that may be due and payable under this act, 
 who shall give him a receipt therefor, of which collection 
 and payment he shall make a report under oath to the comp- 
 troller on the first Monday in March and September of each 
 year, stating for what estate paid, and in such form and con- 
 taining such particulars as the comptroller may prescribe; 
 and for all such taxes collected by him and not paid to the 
 state treasurer by the first day of October and April of each 
 year he shall pay interest at the rate of ten per cent, per 
 annum. 
 
 Fees of county treasurer and N. Y. City comptrol- 
 ler. 
 
 § 22. The treasurer of each county and the comptroller of 
 the city and county of New York shall be allowed to retain, 
 on all taxes paid and accounted for by him each year under 
 this act, in addition to his salary or fees now allowed by 
 law, five per cent, on the first fifty thousand dollars so paid 
 and accounted for by him, three per cent, on the next fifty 
 thousand dollars so paid and accounted for by him, and one 
 per cent, on all additional sums so paid and accounted for 
 by him. 
 
 Receipt from county treasurer, &c, as to payment 
 of tax, how recorded — "Collateral tax" record. 
 
 § 23. Any person or body politic or corporate shall, upon 
 payment of the sum of fifty cents, be entitled to a receipt 
 from the county treasurer of any county, or comptroller of 
 the county of New York, or a copy of the receipt, at his 
 option, that may have been given by said treasurer or comp- 
 troller for the payment of any tax under this act, to be
 
 436 APPENDIX OF STATUTES. [N. Y. ,1. a. , b. 
 
 sealed with the seal of his office, which receipt shall desig- 
 nate on what real property, if any, of which any decedent 
 may have died seized, said tax has been paid, and by whom 
 paid, and whether or not it is in full of said tax, and said 
 receipt may be recorded in the clerk's office of the county in 
 which said property is situate, in a book to be kept by said 
 clerk for such purpose, which shall be labeled "Collateral 
 Tax." 
 
 Uses of taxes paid and how applied — Repeal. 
 
 § 24. All taxes levied and collected under this act, shall 
 be paid into the treasury of the state, for the uses of the 
 state, and shall be applicable to the payment of the general 
 expenses of the state government and to such other pur- 
 poses as the legislature may by law direct. 
 
 § 25. All acts and parts of acts inconsistent with the pro- 
 visions of this act are hereby repealed; but this act shall 
 apply to all estates of deceased persons where no assess- 
 ment of the tax has been made to which such estate or es- 
 tates are liable under the provisions of the foregoing act. 
 [As amended by Laws 1889, c. 479.] 
 
 § 26. This act shall take effect immediately. 
 
 (b) Laws 1890, Ch. 553, as to Charitable Corporations. 
 
 An act to amend chapter one hundred and ninety-one of the 
 Laws of Eighteen Hundred and Eighty-Nine, entitled 
 "An act to limit the amount of property to be held by 
 corporations organized for other than business pur- 
 poses," and relating to such corporations. 
 
 Approved by the governor June 7, 1S90. Passed, three- 
 fifths being present. 
 
 The people of the state of New York, represented in sen- 
 ate and assembly, do enact as follows: 
 
 Section 1. Chapter one hundred and ninety-one of the 
 Laws of Eighteen Hundred and Eighty-Nine, entitled "An act 
 to limit the amount of property to be held by corporations 
 organized for other than business purposes," is hereby 
 amended so as to read as follows:
 
 N. Y., I. b.] APPENDIX OF STATUTES. 437 
 
 Amount of property of certain corporations, limited 
 — Exemption from certain taxation and collateral 
 inheritance act — Proviso. 
 
 £ 1. Any religious, educational, l>ible, missionary, tract, 
 literary, scientific, benevolent or charitable corporation, or 
 corporation organized for the enforcement of laws relating 
 to children or animals, or for hospital, infirmary, or other 
 than business purposes, may take and hold, in its own right 
 or in trust for any purpose comprised in the objects of its 
 incorporation, property not exceeding in value three million 
 dollars, or the yearly income derived from which shall not 
 exceed two hundred and fifty thousand dollars, not with 
 standing the provisions of any special or general act here- 
 tofore passed or certificate of incorporation affecting such 
 corporations. In computing the value of such property no 
 increase in value arising otherwise than from improvements 
 made thereon, shall be taken into account. The personal 
 estate of such corporations shall be exempt from taxation, 
 and the provisions of chapter four hundred and eighty-three 
 of the Laws of Eighteen Hundred and Eighty-Five, entitled 
 "An act to tax gifts, legacies and collateral inheritances in 
 certain cases," and the acts amendatory thereof, shall not 
 apply thereto, nor to any gifts to any such corporation by 
 grant, bequest or otherwise; provided, however, that this 
 provision shall not apply to any moneyed or stock corpora 
 tion deriving an income or profit from the capital or other- 
 wise, or to any corporation which has the right to make 
 dividends or to distribute profits or assets among its mem- 
 bers. 
 
 Special statutes not affected hereby. 
 
 § -. This act shall not affect the right of any such cor- 
 poration to take and hold property exceeding in value the 
 amount specified in section one of this act, provided such 
 right is conferred upon such corporation by special statute; 
 nor affect any statute by which its real estate is exempt 
 from taxation. 
 
 § 3. This act shall take effect immediately.
 
 438 APPENDIX OF STATUTES. [N. Y., I. C. 
 
 (c) Laws 1892, Ch. 169. 
 
 An act to amend chapter four hundred and eighty-three 
 of the Laws of Eighteen Hundred and Eighty-Five, en- 
 titled "An act to tax gifts, legacies and collateral in- 
 heritances in certain cases." 
 Approved by the governor March 19, 1892. Passed, 
 
 three-fifths being present. 
 
 The people of the state of New York, represented in sen- 
 ate and assembly, do enact as follows: 
 
 Section 1. Section one of chapter four hundred and 
 eighty-three of the Laws of Eighteen Hundred and Eighty- 
 Five as amended by chapter seven hundred and thirteen 
 of the Laws of Eighteen Hundred and Eighty-Seven and 
 as further amended by chapter two hundred and fifteen of 
 the Laws of Eighteen Hundred and Ninety-One is hereby 
 amended to read as follows: 
 
 Property passing by will, etc. 
 
 § 1. After the passage of this act 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 the decedent was not a resi- 
 dent of this state at the time of his death, which property 
 or any part thereof shall be within this state; or any 
 interest therein or income therefrom, which shall be trans- 
 ferred by deed, grant, sale or gift made in contemplation 
 of the death of the grantor or bargainor, or intended to 
 take effect in possession or enjoyment after such death, 
 to any person or persons or to any body politic or cor- 
 porate in trust or otherwise, or by reason whereof any per- 
 son or body politic or corporate shall become beneficially 
 entitled in possession or expectancy to any property or 
 the income thereof, other than to or for societies, corpora- 
 tions and institutions now exempted by law from taxation, 
 or from collateral inheritance tax, shall be and is subject 
 to a tax at the rate hereinafter specified, to be paid to the 
 treasurer of the proper county, and in the county of New 
 York, to the comptroller thereof, for the use of the state; 
 and all heirs, legatees, devisees, administrators, executors 
 and trustees shall be liable for any and all such taxes until 
 the same shall have been paid as hereinafter directed.
 
 N. Y., I. C, d.] APPENDIX OF STATUTES. 439 
 
 When the beneficial interest to any personal property or 
 income therefrom shall pass to or for the use of any father, 
 mother, husband, wife, child, brother, sister, wife or widow 
 of a son, or the husband of a daughter, or any child or chil- 
 dren adopted as such in conformity with the laws of the 
 state of New York, or to any person to whom the deceased, 
 for not less than ten years prior to death, stood in the 
 mutually acknowledged relation of a parent, or to any 
 lineal descendant born in lawful wedlock; in every such 
 case the rate of such tax shall be one dollar on every 
 hundred dollars of the clear market value of such prop- 
 erty, and at and after the same rate for every less amount, 
 provided that an estate which may be valued at a less 
 sum than ten thousand dollars shall not be subject to any 
 such duty or tax; but if such beneficial interest is to or in 
 land or real estate in this state, such interest shall be ex- 
 empt from taxation under this section. In all other eases, 
 the rate shall be five dollars on each and every hundred 
 dollars of the clear market value of all property, and at and 
 after the same rate for any less amount, provided that an 
 estate which may be valued at a less sum than five hun- 
 dred dollars shall not be subject to any such duty or tax, 
 provided further that any property heretofore devised or 
 bequeathed or which may hereafter be devised or be- 
 queathed to any person who is a bishop or to any religious 
 corporation, shall be exempted from and not be subject to 
 the provisions of this act. 
 
 § 2. This act shall take effect immediately. 
 
 (d) Laws 1892, Ch. 443. 
 
 Repealed by chapter 1S9. Laws 1893, § 3. 
 
 An act to amend chapter four hundred and eighty-three of 
 the Laws of Eighteen Hundred and Eighty-Five, enti- 
 tled "An act to tax gifts, legacies and collateral inherit- 
 ances in certain cases, as amended by chapter seven 
 hundred and thirteen of the Laws of Eighteen Hundred 
 and Eighty-Seven, as amended by chapter three hun- 
 dred and seven of the Laws of Eighteen Hundred and 
 Eighty-Nine, as amended by chapter one hundred and 
 sixty-seven of the Laws of Eighteen Hundred and Nine- 
 ty-two." 
 Approved by the governor May 3, 1S92. Passed, three- 
 fifths being present.
 
 440 APPENDIX OF STATUTES. [X.Y..L d. 
 
 The people of the state of Xew York, represented in sen- 
 ate and assembly, do enact as follows: 
 
 Section 1. Section thirteen of chapter four hundred and 
 eighty-three of the Laws of Eighteen Hundred and Eighty- 
 Five, entitled "An act to tax gifts, legacies and collateral 
 inheritances in certain cases." as amended by chapter seven 
 hundred and thirti en of the Laws of Eighteen Hundred and 
 Eighty-Seven, as amended by chapter Three hundred and 
 seven of the Laws of Eighteen Hundred and Eighty-Nine, 
 as amended by chapter one hundred and sixty-seven of the 
 Laws of Eighteen Hundred and Ninety-Two, is hereby 
 amended so as to read as follows: 
 
 Surrogate to appoint appraiser. 
 
 § 13. In order to fix the value of property of persons whose 
 estates shall be subject to the payment of said tax, the sur- 
 rogate, on the application of any interested party, or upon 
 his own motion, shall appoint some competent person as 
 appraiser as often as. and whenever occasion may require, 
 whose duty it shall be forthwith to give such notice by mail 
 to all persons known to have or claim an interest in such 
 property, and to such persons as the surrogate may by order 
 direct, of the time and place he will appraise such property; 
 and at such time and place, to appraise the same at its fair 
 market value, and for that purpose the said appraiser is au- 
 thorized by h-ave of the surrogate to issue subpoenas for and 
 to compel the attendance of witnesses before him, and to 
 take the evidence of such witnesses under oath concern- 
 in ■_' such property and the value thereof, and he shall make 
 a report thereof, and of such value, in writing to said sur- 
 rogate, together with the depositions of the witnesses ex- 
 amined and such other facts in relation thereto and to said 
 matter as said surrogate may by order require, to be filed in 
 the office of such surrogate: and from this report the said 
 surrogate shall forthwith assess and fix the then cash value 
 of all estates, annuities and lite estates or terms of years 
 growing out of said estate, and the tax to which the same 
 is liable, and shall immediately give notice thereof by mail 
 to all parties known to be interested therein, and the value 
 of every future or contingent or limited estate, income or 
 interest shall, for the purposes of this act, be determined by 
 the rule, method and standards of mortality and of value, 
 which are employed by the superintendent of the insurance 
 department in ascertaining the value of policies of life in- 
 surance and annuities, for the determination of the liabili- 
 ties of life insurance companies, save that the rate of inter-
 
 N. Y , I. d.] APPENDIX OF STATUTES. 441 
 
 est to be assessed in computing the present value of all fu- 
 ture interests and contingencies shall be five per centum 
 per annum; and thje superintendent of the insurance de- 
 partment shall, on the application of any surrogate, deter- 
 mine the value of such future or contingent or limited es- 
 tate, income or interest, upon the facts contained in such 
 report, and certify the same to the surrogate, and his cer- 
 tificate shall be conclusive evidence that the method of com- 
 putation adopted therein is correct. Any person or persons 
 dissatisfied with the appraisement or assessment may ap- 
 peal therefrom to the surrogate of the proper county within 
 sixty days after the making and filing of such assessment, 
 on paying or giving security approved by the surrogate to 
 pay all costs, together with whatever tax shall be fixed by 
 said court. The said appraiser shall be paid by the county 
 treasurer or comptroller out of any funds he may have in 
 his hands on account of said tax, on the certificate of the 
 surrogate, at the rate of three dollars per day for every day 
 actually and necessarily employed in said appraisement, to- 
 gether with his actual and necessary traveling expenses in- 
 cluding the fees paid such witnesses. The comptroller of 
 the city and county of New York shall retain out of any 
 funds he may have in his hands on account of said tax. a 
 sum of money sufficient to provide the surrogate in the city 
 and county of New York, with an assistant appointed by 
 said surrogate, who shall be known as the succession tax 
 assistant, whose salary shall be four thousand dollars a 
 year ; a succession tax clerk whose salary shall be two thou- 
 sand four hundred dollars a year; an assistant clerk whose 
 salary shall be one thousand eight hundred dollars a year. 
 and a recording clerk whose salary shall be thirteen hundred 
 dollars a year, said salaries to be payable monthly; and a 
 further sum of money, not exceeding five hundred dollars a 
 year, to be used to pay the expenses of the said surrogate 
 necessarily incurred in the assessment and collection of said 
 tax. said amounts to be paid upon the certificates and requi- 
 sitions of said surrogate respectively. The county treasurer 
 of the county of Kings shall retain out of any funds he may 
 have in his hands on account of said tax a sum of money 
 sufficient to provide the surrogate of the county of Kings 
 with a clerk, appointed by said surrogate, who shall be 
 known as the "inheritance and legacy tax clerk." and whose 
 salary shall be two thousand four hundred dollars a year, 
 payable monthly, said amount to be paid upon the certifi- 
 cate of said surrogate. 
 
 § 2. This act shall take effect immediately.
 
 442 APPENDIX OF STATUTES. [N. Y. , I. C 
 
 TRANSFER TAX ACT. 
 
 (e) Laws 1892, Ch. 399, with Amendments to 1895. 
 
 Chap. 399. 
 An act in relation to taxable transfers of property. 
 
 Approved by the governor April 30, 1892. Passed, three- 
 fifths being present. 
 
 The people of the state of New York, represented in senate 
 and assembly, do enact as follows: 
 
 TAXABLE TRANSFERS OF PROPERTY. 
 
 Section 1. Taxable Transfers. 
 
 2. Exceptions and Limitations. 
 
 3. Lien of Tax and Payment Thereof. 
 
 4. Discount, Interest and Penalty. 
 
 5. Collection of Tax by Executor, Administrators and Trus- 
 
 tees. 
 
 6. Refund of Tax Erroneously Paid. 
 
 7. Deferred Payments. 
 
 8. Taxes upon Devisees and Bequests in Lieu of Commissions. 
 
 9. Liability of Certain Corporations to Tax. 
 
 10. Jurisdiction of the Surrogate. 
 
 11. Appointment of Appraisers. 
 
 12. Proceedings by Appraisers. 
 
 13. Determination by Surrogate. 
 
 14. Surrogate's Assistants in New York City. 
 
 15. Proceedings for the Collection of Taxes. 
 
 16. Receipt from the County Treasurer and Comptroller. 
 
 17. Fees of County Treasurer and Comptroller. 
 
 18. Books and Forms to be Furnished by the State Comptroller. 
 
 19. Reports of Surrogate and County Clerk. 
 
 20. Reports of County Treasurers and Comptrollers of the City 
 
 of New York. 
 
 21. Application of Taxes. 
 
 22. Definitions. 
 
 23. Laws Repealed. 
 
 24. Saving Clause. 
 
 25. Construction. 
 
 26. When to Take Effect. 
 
 Taxable transfers. 
 
 § 1. A tax shall be and is hereby imposed upon the trans- 
 fer of any property, real or personal, of the value of five 
 hundred dollars or over, or of any interest therein or in- 
 come therefrom, in trust or otherwise, to persons or corpora- 
 tions not exempt by law from taxation on real or personal 
 property in the following cases: 
 
 1. When the transfer is by will or by the intestate laws
 
 N. Y.,I. C] APPENDIX OF STATUTES. 443 
 
 of this state from any person dying seized or possessed of 
 the property while a resident of the slate. 
 
 2. When the transfer is by will or intestate law, of prop- 
 erty within the state, and the decedent was a nonresident 
 of the state at the time of his death. 
 
 3. When the transfer is of property made by a resident or 
 by a non-resident, when such non-resident's property is with- 
 in this state, by deed, grant, bargain, sale or gift made in 
 contemplation of the death of the grantor, vendor, or donor; 
 or intended to take effect, in possession or enjoyment, 
 at or after such death. Such tax shall also be imposed 
 when any such person or corporation becomes beneficially 
 entitled, in possession or expectancy, to any property or the 
 income thereof by any such transfer, whether made before 
 or after the passage of this act. Such tax shall be at the 
 rate of five per cent upon the clear market value of such 
 property, except as otherwise prescribed in the next section. 
 
 Exceptions and limitations. 
 
 § 2. When the property or any beneficial interest therein 
 passes by any such transfer to or for the use of any father, 
 mother, husband, wife, child, brother, sister, wife or widow 
 of a son or the husband of a daughter, or any child or chil- 
 dren adopted as such in conformity with the laws of this 
 state, of the decedent, grantor, donor or vendor, or to any 
 person to whom any such decedent, grantor, donor or vendor 
 for not less than ten years prior to such transfer stood in 
 the mutually acknowledged relation of a parent or to any 
 lineal descendant of such decedent, grantor, donor, or ven- 
 dor born in lawful wedlock; such transfer of property shall 
 not be taxable under this act, unless it is personal property 
 of the value of ten thousand dollars or more, in which case 
 it shall be taxable under this act at the rate of one per 
 centum upon the clear market value of such property. But 
 any property heretofore or hereafter devised or bequeathed 
 to any person who is a bishop or to any religious corporation 
 shall be exempted from and not subject to the provisions of 
 this act. 
 
 Lien of tax and payment thereof. 
 
 § 3. Every such tax shall be and remain a lien upon the 
 property transferred until paid, and the person to whom 
 the property is so transferred, and the administrators, exec- 
 utors and trustees of every estate so transferred shall be 
 personally liable for such tax until its payment. The tax
 
 444 ATPENDIX OF STATUTES. [N. Y. , I. 6. 
 
 shall be paid to the treasurer or comptroller of the county 
 of the surrogate having jurisdiction as herein provided; and 
 said treasurer or comptroller shall give, and every executor, 
 administrator or trustee shall take duplicate receipts from 
 him of such payment, one of which he shall immediately 
 send to the comptroller of the state, whose duty it shall be 
 to Charge the treasurer or comptroller so receiving the tax 
 with the amount thereof and to seal said receipt with the 
 seal of his office and countersign the same and return it to 
 the executor, administrator or trustee, whereupon it shall 
 be a proper voucher in the settlement of his accounts; but 
 no executor, administrator or trustee shall be entitled to a 
 final accounting of an estate in settlement of which a tax 
 is due under the provisions of this act unless he shall pro- 
 duce a receipt so sealed and countersigned by the com- 
 troller or a copy thereof certified by him, or unless a bond 
 shall have been filed as prescribed by section seven of this 
 act. All taxes imposed by this act shall be due and payable 
 at the time of the transfer, provided, however, that taxes 
 upon the transfer of any estate, property or interest therein 
 limited, conditioned, dependent or determinable upon 'the 
 happening of any contingency or future event by reason of 
 which the fair market value thereof cannot be ascertained 
 at the time of the transfer as herein provided, shall accrue 
 and become due and payable when the persons or corpora- 
 tions beneficially entitled thereto shall come into actual pos- 
 session or enjoyment thereof. 
 
 Discount, interest and penalty. 
 
 § 4. If such tax is paid within six months from the ac- 
 cruing thereof, a discount of five per centum shall be al- 
 lowed and deducted therefrom. If such tax is not paid 
 within eighteen months from the accruing thereof, interest 
 shall be charged and collected thereon at the rate of ten per 
 centum per annum from the time the tax accrued; unless 
 by reason of claims made upon the estate necessary litiga- 
 tion or other unavoidable cause of delay, such tax can not 
 be determined and paid as herein provided, in which case 
 interest at the rate of six per centum per annum shall be 
 charged upon such tax from the accrual thereof until the 
 cause of such delay is removed, after which ten per centum 
 shall be charged. In all cases when a bond shall be given 
 under the provisions of section seven of this act interest 
 shall be charged at the rate of six per cent, fvoni the accrual 
 of the tax until the date of payment thereof.
 
 N. Y.,I. U.] APPENDIX OF STATUTES. 445 
 
 Collection of tax by executors, administrators and 
 trustees. 
 
 § 5. Every executor, administrator, or trustee shall have 
 full power to sell so much of the property of tne decedent as 
 will enable him to pay such tax in the same manner as he 
 might be entitled by law to do for the payment of the debts 
 of the testator or intestate. Any such administrator, exec- 
 utor or trustee having in charge or in trust any legacy or 
 property for distribution subject to such tax shall deduct 
 the tax therefrom; and within thirty days therefrom shall 
 pay over the same to the county treasurer or comptroller, as 
 herein provided. If such legacy or property be not in money, 
 he shall collect the tax thereon upon the appraised value 
 thereof from the person entitled thereto. He shall not de- 
 liver or be compelled to deliver any specific legacy or prop- 
 erty subject to tax under this act, to any person until he 
 shall have collected the tax thereon. If any such legacy 
 shall be charged upon or payable out of real property the 
 heir or devisee shall deduct such tax therefrom and pay it 
 to the administrator, executor or trustee, and the tax shall 
 remain a lien or charge on such real property until paid, and 
 the payment thereof shall be enforced by the executor, ad- 
 ministrator or trustee in the same manner that payment of 
 the legacy might be enforced, or by the district attorney 
 under section fifteen of this act. If any such legacy shall 
 be given in money to any such person for a limited period, 
 the administrator, executor or trustee shall retain the tax 
 upon the whole amount, but if it be not in money, he shall 
 make application to the court having jurisdiction of an ac- 
 counting by him, to make an apportionment, if the case re- 
 quire it, of the sum to be paid into his hands by such leg- 
 atees, and for such further order relative thereto as the case 
 may require. 
 
 Refund of tax erroneously paid. 
 
 § 6. If any debts shall be proven against the estate of a dece- 
 dent after the payment of any legacy or distributive share 
 thereof, from which any such tax has been deducted or upon 
 which it has been paid by the person entitled to such legacy 
 or distributive share and such person is required to refund 
 the amount of such debts or any part thereof, an equitable 
 proportion of the tax shall be repaid to him by the executor, 
 administrator or trustee, if the tax has not been paid to the 
 county treasurer, comptroller of the city of New York or to 
 the state treasurer, or by such treasurer, comptroller, or
 
 446 APPENDIX OF STATUTES. [N. Y.,I. e. 
 
 state treasurer, if such tax has been paid to him. When 
 an}* amount of said tax shall have been paid erroneously into 
 the state treasury, it shall be lawful for the comptroller of 
 this state, upon satisfactory proof presented to him of the 
 facts, to require the amount of such erroneous or illegal pay- 
 ment to be refunded to the executor, administrator, trustee, 
 person or persons who have paid any such tax in error from 
 the treasury; or the said comptroller may by order direct 
 and allow the treasurer of any county or the comptroller 
 of the city of New York to refund the amount of any illegal 
 or erroneous payment of such tax out of the funds in his 
 hands or custody to the credit of such taxes, and credit 
 himself with the same in his quarterly account rendered to 
 the comptroller of this state under this act; provided, how- 
 ever, that all applications for such refunding of erroneous 
 taxes shall be made within five years from the payment 
 thereof. 
 
 Deferred payment. 
 
 § 7. Any person or corporation beneficially interested in 
 any property chargeable with a tax under this act and exec- 
 utors, administrators and trustees thereof, may elect with- 
 in one year from the date of the transfer thereof as herein 
 provided not to pay such tax until the person or persons 
 beneficially interested therein shall come into the actual 
 possession or enjoyment thereof. If it be personal prop- 
 erty, the person or persons so electing shall give a bond to 
 the state in penalty of three times the amount of any such 
 tax, with such sureties as the surrogate of the proper 
 county may approve, conditioned for the payment of such 
 tax and interest thereon, at such time or period as the per- 
 son or persons beneficially interested therein may come into 
 the actual possession or enjoyment of such property, which 
 bond shall be filed in the office of the surrogate. Such 
 bond must be executed and filed and a full return of such 
 property upon oath made to the surrogate within one year 
 from the date of transfer thereof as herein provided, and 
 such bond must be renewed every five years. 
 
 Taxes upon devises and bequests in lieu of com- 
 missions. 
 
 § 8. If a testator bequeaths or devises property to one or 
 more executors or trustees in lieu of their commissions or 
 allowances, or makes them his legatees to an amount ex- 
 ceeding the commissions or allowances prescribed by
 
 N. Y., I. e] ATE'ENDIX OF STATUTES. 4-17 
 
 law for an executor or trustee, the excess in value of the 
 property so bequeathed or devised, above the amount of 
 commissions or allowances prescribed by law in similar 
 cases shall be taxable under this act. 
 
 Liability of certain corporations to tax. 
 
 § 9. If a foreign executor, administrator or trustee shall 
 assign or transfer any stock or obligations in this state 
 standing in the name of a decedent, or in trust for a dece- 
 dent, liable to any such tax, the tax shall be paid to the 
 treasurer of the proper county or the comptroller of the city 
 of New York on the transfer thereof. Xo safe deposit com- 
 pany, bank or other institution, person or persons holding 
 securities or assets of a decedent, shall deliver or transfer 
 the same to the executors, administrators or legal represent- 
 atives of said decedent unless notice of the time and place 
 of such intended transfer be served upon the county treas- 
 urer or comptroller at least live days prior to the said trans- 
 fer. And it shall be lawful for the said county treasurer 
 or comptroller, personally or by representative, to examine 
 said securities or assets at the time of such delivery or 
 transfer. Failure to serve such notice or to allow such 
 examination shall render said safe deposit company, trust 
 company, bank or other institution, person or persons liable 
 to the payment of the tax due upon said securities or assets 
 in pursuance of the provisions of this act. 
 
 Jurisdiction of the surrogate. 
 
 § 10. The surrogate's court of every county of the state 
 having jurisdiction to grant letters testamentary or of ad- 
 ministration upon the estate of a decedent whose property 
 is chargeable with any tax under this act, or to appoint a 
 trustee of such estate or any part thereof, or to give ancil- 
 lary letters thereon, shall have jurisdiction to hear and de- 
 termine all questions arising under the provisions of this 
 act, and to do any act in relation thereto authorized by law 
 to be done by a surrogate in other matters or proceedings 
 coming within his jurisdiction; and if two or more surro- 
 gates' courts shall be entitled to exercise any such jurisdic- 
 tion, the surrogate first acquiring jurisdiction hereunder 
 shall retain the same to the exclusion of every other surro- 
 gate. Every petition for ancillary letters testamentary or 
 ancillary letters of administration made in pursuance of the 
 provisions of article seven, title three, chapter eighteen of 
 the Code of Civil Procedure shall set forth the name of the
 
 448 APPENDIX OF STATUTES. [N. Y., I. C. 
 
 county treasurer or comptroller as a person to be cited as 
 therein prescribed, and a true and correct statement of all 
 the decedent's property in this state and the value thereof; 
 and upon the presentation thereof the surrogate shall issue 
 a citation directed to such county treasurer or comptroller; 
 and upon the return of the citation the surrogate shall de- 
 termine the amount of the tax which may be or become due 
 under the provisions of this act and his decree awarding the 
 letters may contain any provision for the payment of such 
 tax or the giving of security therefor which might be made 
 by such surrogate if the county treasurer or comptroller 
 were a creditor of the decedent. 
 
 Appointment of appraisers. 
 
 § 11. The surrogate, upon the application of any interested 
 party, including county treasurers, or the comptroller of 
 New York City, or upon his own motion, shall, as often as 
 and whenever occasion may require, appoint a competent 
 person as appraiser, to fix the fair market value, at the 
 time of the transfer thereof, of property of persons whose 
 estates shall be subject to the payment of any tax im- 
 posed by this act. If the property upon the transfer of 
 which a tax is imposed shall be an estate, income or in- 
 terest for a term of years, or for life, or determinable upon 
 any future or contingent estate, or shall be a remainder or 
 reversion or other expectancy, real or personal, the en- 
 tire property or fund by which such estate, income or in- 
 terest is supported, or of which it is a part, shall be ap- 
 praised immediately after such transfer, or as soon there- 
 after as may be practicable, at the fair and clear market 
 value thereof at that time; provided, however, that when 
 such estate, income or interest shall be of such a nature 
 that its fair and clear market value can not be ascertained 
 at such time, it shall be appraised in like manner at the 
 time when such value first became ascertainable. The 
 value of every future, or contingent or limited estate, in- 
 come, interest or annuity dependent upon any life or lives 
 in being shall be determined by the rule, method and stand- 
 ard of mortality and value employed by the superintendent 
 of insurance in ascertaining the value of policies of life in- 
 surance and annuities for the determination of liabilities 
 of life insurance companies; except that the rate of inter- 
 est for computing the present value of all future and con- 
 tingent interests or estates shall be five per centum per 
 annum.
 
 N. Y.,I. e.] APPENDIX OF STATUTES. 4-TJ 
 
 Proceedings by appraisers. 
 
 § 12. Every such appraiser shall forthwith give notice 
 by mail to all persons known to have a claim or interest 
 in the property to be appraised, including the county treas- 
 urer or comptroller, and to such persons as the surrogate 
 may by ordei- direct, of the time and place when he will 
 appraise such property. He shall, at such time and place, 
 appraise the same at its fair market value, as herein pre- 
 scribed, and for that purpose the said appraiser is author- 
 ized to issue subpoenas and to compel the attendance of 
 witnesses before him and to take the evidence of such wit- 
 nesses under oath concerning such property and the value 
 thereof; and he shall make report thereof and of such value 
 in writing to the said surrogate, together with the deposi- 
 tions of the witnesses examined, and such other facts in 
 relation thereto, and to the said matter as said surrogate 
 may order or require. Every appraiser shall be paid on 
 the certificate of the surrogate at the rate of three dollars 
 per day for every day actually and necessarily employed in 
 such appraisal, and his actual and necessary traveling ex- 
 penses, and the fees paid such witnesses, wdiich fees shall 
 be the same as those now paid to witnesses subpoenaed to 
 attend in courts of record by the county treasurer or comp- 
 troller out of any funds he may have in his hands on ac- 
 count of any tax imposed under the provisions of this act. 
 
 Determination by surrogate — Reappraiseinents. 
 
 § 13. The report of the appraiser shall be filed in the of- 
 fice of the surrogate, and from such report and other proof 
 relating to any such estate before the surrogate, the surro- 
 gate shall forthwith as of course determine the cash value 
 of all estates and the amount of tax to which the same are 
 liable; or, the surrogate may so determine the cash value of 
 all such estates and the amount of tax to which the same 
 are liable without appointing an appraiser. The superin- 
 tendent of insurance shall, on the application of any surro- 
 gate, determine the value of any such future or contingent 
 estates, income or interest limited, contingent, dependent or 
 determinable upon the life or lives of persons in being, upon 
 the facts contained in any such appraiser's report, and cer- 
 tify the same to the surrogate, and his certificate shail be 
 conclusive evidence that the method of computation adopt- 
 ed therein is correct. Any person dissatisfied with the ap- 
 praisement or assessment and determination of tax, may 
 
 LAW INHER. 29
 
 450 APPENDIX OF STATUTES. [N. Y., I. e. 
 
 appeal therefrom to the surrogate within sixty days from 
 the fixing, assessing and determination of tax by the surro- 
 gate as herein provided, upon filing in the office of the sur- 
 rogate a written notice of appeal, which shall state the 
 grounds upon which the appeal is taken. The surrogate 
 shall immediately give notice, upon the determination by 
 him as to the value of any estate which is taxable under this 
 act, and of the tax to which it is liable, to all parties known 
 to be interested therein. 
 
 Within two years after the entry of an order or decree of 
 a surrogate determining the value of an estate and assessing 
 the tax thereon, the comptroller of the state may, if he be- 
 lieves that such appraisal, assessment or determination has 
 been fraudulently, collusively, or erroneously made, make 
 application to a justice of the supreme court of the judicial 
 district in which the former owner of such estate resided 
 for a reappraisal thereof. The justice to whom such appli- 
 cation is made may thereupon appoint a competent person 
 to reappraise such estate. Such appraiser shall possess the 
 powers, be subject to the duties and receive the compensa- 
 tion provided by sections eleven and twelve of this act. 
 Such compensation shall be payable by the county treasurer 
 or comptroller out of any funds he may have on account of 
 any tax imposed under the provisions of this act, upon the 
 certificate of the justice appointing him. The report of 
 such appraiser shall be filed with the justice by whom he 
 was appointed, and thereafter the same proceedings shall 
 be taken and had by and before such justice as are herein 
 provided to be taken and had by and before the surrogate. 
 The determination and assessment of such justice shall su- 
 persede the determination and assessment of the surrogate, 
 and shall be filed by such justice in the office of the state 
 comptroller. [As amended by Laws 1895, c. 556.] 
 
 Surrogate's and District Attorneys' assistants in 
 New York City and Erie County. 
 
 § 14. The comptroller of the city and county of New York 
 shall retain out of any funds he may have in his hands on 
 account of said tax a sum of money sufficient to provide the 
 surrogates in the city and county of New York with an as- 
 sistant, appointed by said surrogates, who shall be known as 
 the transfer tax assistant, whose salary shall be four thou- 
 sand dollars a year; a transfer tax clerk, whose salary shall 
 be two thousand four hundred dollars a year; an assistant 
 clerk, whose salary shall be one thousand eight hundred
 
 N. Y.,I. e.] APPENDIX OF STATUTES. 451 
 
 dollars a year, and a recording clerk whose salary shall be 
 one thousand three hundred dollars a year, said salaries to 
 be paid monthly; and a further sum of money, not exceed- 
 ing live hundred dollars a year, to be used to pay the ex- 
 penses of the said surrogates necessarily incurred in the as- 
 sessment and collection of said tax, said amounts to be paid 
 upon the certificates and requisitions of said surrogates re- 
 spectively. 
 
 The comptroller of the city and county of New York shall 
 also retain, out of any funds he may have in his hands on 
 account of said tax, a sum of money sufficient to provide the 
 district attorney in the city and county of New York with 
 an assistant, appointed by said district attorney, who shall 
 be known as the transfer tax assistant, whose salary shall 
 be three thousand dollars a year; a transfer tax clerk, whose 
 salary shall be two thousand four hundred dollars a year. 
 and a surrogate's process server, whose salary shall be one 
 thousand two hundred dollars a year, said salary to be pay- 
 able monthly; and a further sum of money not exceeding- 
 five hundred dollars a year, to be used to pay the expenses 
 of the said district attorney for the conduct and prosecution 
 of the proceedings mentioned in section fifteen of this act, 
 said amounts to be paid upon the certificate and requisi- 
 tion of said district attorney. The county treasurer of the 
 county of Erie shall also retain out of any funds he may 
 have in his hands on account of said tax, a sum of money 
 sufficient to provide the district attorney in the county of 
 Erie with an assistant, appointed by the said district at- 
 torney, who shall be known as the transfer tax assistant, 
 whose salary shall be two thousand dollars a year, said sal- 
 ary to be paid monthly. [As amended by Laws 1895, c. 515. 
 See Laws 1895, c. 191, amending same section; also Laws 
 1S94, c. 767.] 
 
 Proceeding's for the collection of taxes. 
 
 § 15. If the treasurer or comptroller of any county shall 
 have reason to believe that any tax is due and unpaid under 
 this act, after the refusal or neglect of the persons liable 
 therefor to pay the same, he shall notify the district attor- 
 ney of the county, in writing, of such failure or neglect, and 
 such district attorney, if he have probable cause to believe 
 that such tax is due and unpaid, shall apply to the surro- 
 gate's *court for a citation, citing the persons liable to pay 
 such tax to appear before the court on the day specified, not 
 more than three months after the date of such citation, and
 
 452 APPENDIX OF STATUTES. [N.Y.,I. e. 
 
 show cause why the tax should not be paid. The surrogate 
 upon such application, and whenever it shall appear to him 
 that any such tax accruing under this act has not been paid 
 as required by law, shall issue such citation and the service 
 of such citation, and the time, manner and proof thereof, 
 and the hearing and determination thereon and the enforce- 
 ment of the determination or order made by the surrogate 
 shall conform to the provisions of the Code of Civil Proce- 
 dure for the service of citations out of the surrogate's court, 
 and the hearing and determination thereon and its enforce- 
 ment so far as the same may be applicable. The surrogate 
 or his clerk shall upon request of the district attorney, treas- 
 urer or comptroller of the county, furnish without fee one 
 or more transcripts of such decree, which shall be docketed 
 and filed by the county clerk of any county of the state with- 
 out fee, in the same manner and with the same effect as 
 provided by law for filing and docketing transcripts of de- 
 crees of the surrogate's court. The costs awarded by any 
 such decree after the collection and payment of the tax to 
 the treasurer or comptroller may be retained by the district 
 attorney for his own use. Such costs shall be fixed by the 
 surrogate in his discretion, but shall not exceed in any case 
 where there has not been a contest the sum of one hundred 
 dollars, or where there has been a contest the sum of two 
 hundred and fifty dollars. Whenever the surrogate shall 
 certify that there was probable cause for issuing a citation 
 and taking the proceedings specified in this section, the state 
 treasurer shall pay or allow to the treasurer or the comptrol- 
 ler of the county all expenses incurred for the service of cita- 
 tions and other lawful disbursements not otherwise paid. 
 In proceedings to which any county treasurer or comptroller 
 is cited as a party under sections eleven and twelve of this 
 act, the state comptroller is authorized to designate and re- 
 tain counsel to represent such county treasurer or comp- 
 troller therein, and to direct such county treasurer or comp- 
 troller to pay the expenses thereby incurred, out of the 
 funds which may be in his hands on account of this tax. 
 
 And the comptroller of the state is hereby authorized, 
 with the approval of the attorney-general, and a justice of 
 the supreme court of the judicial district in which the for- 
 mer owner resided to compromise and settle the amount of 
 such tax in any case where controversies have arisen or 
 may hereafter arise as to the relationship of the beneficiaries 
 to the former owner thereof. [As amended by chapter 378, 
 Laws 1895.]
 
 N. Y. , I. e.] APPENDIX OF STATUTES. 453 
 
 Heceipt from the county treasurer and comptroller. 
 
 § 16. Any person shall upon the payment of the sum of 
 fifty cents be entitled to a receipt from the county treasurer 
 of any county or the comptroller of the city of New York, 
 or at his option to a copy of a receipt that may have been 
 given by such treasurer or comptroller for the payment of 
 any tax under this act, under the official seal of such treas- 
 urer or comptroller, which receipt shall designate upon what 
 real property, if any, of which any decedent may have died 
 seized, such tax shall have been paid, by whom paid, and 
 whether in full of such tax. Such receipt may be recorded 
 in the clerk's office of the county in which such property is 
 situate, in a book to be kept by him for that purpose, which 
 shall be labelled "transfer tax." 
 
 Fees of county treasurer and comptroller. 
 
 § 17. The treasurer of each county and the comptroller of 
 the city and county of New York, shall be allow r ed to retain 
 on all taxes paid and accounted for by him each year, under 
 this act, five per centum on the first fifty thousand dollars, 
 three per centum on the next fifty thousand dollars, and one 
 per centum on all additional sums. Such fees shall be in 
 addition to the fees and salaries now allowed by law to such 
 officers, except that in the counties of Erie and Monroe, such 
 per centum shall be credited to and belong to the county 
 where collected. [As amended by Laws 1893, c. 701.] 
 
 Books and forms to be furnished by the state comp- 
 troller. 
 
 § 18. The comptroller of the state shall furnish to each 
 surrogate, a book, which shall be a public record, and in 
 which he shall enter the name of every decedent, upon whose 
 estate an application to him has been made for the issue of 
 letters of administration, or letters testamentary, or ancil- 
 lary letters, the date and place of death of such decedent, 
 the estimated value of his real and personal property, the 
 names, places, residences and relationship to him of his 
 heirs at law, the names, and places of residence of the leg- 
 atees and devises in any will of any such decedent, the 
 amount of each legacy and the estimated value of any real 
 property devised therein, and to whom devised. These en- 
 tries shall be made from the data contained in the papers 
 filed on any such application, or in any proceeding relating 
 to the estate of the decedent. The surrogate shall also en-
 
 454 APPENDIX OF STATUTES. [N. Y.,I. e. 
 
 ter in such book the amount of the personal property of any 
 such decedent, as shown by the inventory thereof when made 
 and filed in his office, and the returns made by any appraiser 
 appointed by him under this act, and the value of annuities, 
 life estates, terms of years and other property of any such 
 decedent or given by him in his will or otherwise, as fixed 
 by the surrogate, and the tax assessed thereon, and the 
 amounts of any receipts for payment of any tax on the es- 
 tate of such decedent under this act filed with him. The 
 state comptroller shall also furnish to each surrogate forms 
 for the reports to be made by such surrogate, which shall 
 correspond with the entries to be made in such book. 
 
 Reports of surrogate and county clerk. 
 
 § 19. Each surrogate shall, on January, April, July and 
 October first of each year, make a report in duplicate, upon 
 the forms furnished by the comptroller containing all the 
 data and matters required to be entered in such book, one 
 of which shall be immediately delivered to the county treas- 
 urer or comptroller and the other transmitted to the state 
 comptroller. The county clerk of each county shall at the 
 same times make reports in duplicate, containing a state- 
 ment of any deed or other conveyance filed or recorded in 
 his office of any property, which appears to have been made 
 or intended to take effect in possession or enjoyment after 
 the death of the grantor or vendor, with the name and place 
 of residence of such grantor or vendor, the name and place 
 of residence of the grantee or vendee, and a description of 
 the property transferred, one of which duplicates shall be 
 immediately delivered to the county treasurer or comptroller 
 and the other transmitted to the state comptroller. 
 
 Reports of county treasurer and of the comptroller 
 of the city of New York. 
 
 § 20. Each county treasurer and the comptroller of the 
 city of New York shall make a report under oath to the state 
 comptroller, on January, April, July and October first of 
 each year, of all taxes received by him under this act, stat- 
 ing for what estate and by whom and when paid. The form 
 of such report may be prescribed by the state comptroller. 
 He shall at the same time pay the state treasurer all taxes 
 received by him under this act and not previously paid into 
 the state treasury, and for all such taxes collected by him 
 and not paid into the state treasury within thirty days from 
 the times herein required, he shall pay interest at the rate 
 of ten per centum per annum.
 
 N. Y.,I. e.] APPENDIX OF STATUTES. 455 
 
 Application of taxes. 
 
 § 21. All taxes levied and collected under this act snail 
 be paid into the treasury of the state for the use of the 
 state, and shall be applicable to the expenses of the state gov- 
 ernment and to such other purposes as the legislature shall 
 by law direct. 
 
 Definitions. 
 
 Ji 22. The words "estate" and "property" as used in this 
 act shall be taken to mean 'the property or interest therein 
 of the testator, intestate, grantor, bargainor or vendor, pass- 
 ing or transferred to those not herein specifically exempted 
 from the provisions of this act and not as the property or 
 interest therein passing or transferred to individual legatees, 
 devisees, heirs, next of kin, grantees, donees or vendees, and 
 shall include all property or interest therein, whether situ- 
 ated within or without this state, over which this state has 
 any jurisdiction for the purposes of taxation. The word 
 "transfer" as used in this act shall be taken to include the 
 passing of property or any interest therein in possession or 
 enjoyment, present or future, by inheritance, descent, devise, 
 bequest, grant, deed, bargain, sale or gift in the manner 
 herein prescribed. The words "county treasurer," "comp- 
 troller" and "district attorney" as used in this act shall be 
 taken to mean the treasurer, comptroller or district attorney 
 of the county of the surrogate having jurisdiction as provid- 
 ed in section ten of this act. 
 
 Laws repealed. 
 
 § 23. Of the laws enumerated in the schedule hereto an- 
 nexed, that portion specified in the last column is repealed. 
 Such repeal shall not revive a law repealed by any law here- 
 by repealed, but shall include all laws amendatory of the 
 laws herebj' repealed. 
 
 Saving clause. 
 
 § 24. The repeal of a law or any part of it specified in the 
 annexed schedule shall not affect or impair any act done, or 
 right accruing, accrued or acquired, or liability, penalty, for- 
 feiture, or punishment incurred prior to May first, eighteen 
 hundred and ninety-two, under or by virtue of any law so 
 repealed, but the same may be asserted, enforced, prosecut- 
 ed or inflicted as fully and to the same extent as if such law 
 had not been repealed; and all actions and proceedings, 
 civil or criminal, commenced under or by virtue of the law
 
 45G APPENDIX OF STATUTES. [N. Y.,I. e. , f. 1. 
 
 so repealed and pending on April thirtieth, eighteen hundred 
 and ninetv-two, may be prosecuted and defended to final 
 effect in the same manner as they might under the laws 
 then existing, unless it shall be otherwise specially provided 
 by law. 
 
 Construction. 
 
 § 25. The provisions of this act, so far as they are substan- 
 tially the same as those of laws existing on April thirtieth, 
 eighteen hundred and ninetj'-two, shall be construed as a 
 continuation of such laws modified or amended according to 
 the language employed in this act, and not as new enact- 
 ments. References in laws not repealed to provisions of 
 laws incorporated into this act and repealed, shall be con- 
 strued as applying to the provisions so incorporated. Noth- 
 ing in this act shall be construed to amend or repeal any 
 provision of the Criminal or Penal Code. 
 
 When to take effect. 
 
 § 20. This act shall take effect on May first, eighteen hun- 
 dred and ninety-two. 
 
 Schedule of Laws Repealed. 
 Laws of Chapter Sections. 
 
 1885 483 All. 
 
 1887 713 All. 
 
 1889 307 All. 
 
 1889 479 All. 
 
 1891 215 All. 
 
 (f) Special Acts. 
 
 1. Laws 1893, Ch. 199. 
 
 An act to make provision for the collection, in the county of 
 Kings, of the tax under chapter three hundred and nine 
 ty-nine of the Laws of Eighteen Hundred and Ninety- 
 Two, entitled "An act in relation to taxable transfers of 
 property," by authorizing the appointment of certain 
 officers and making provisions for the salaries thereof, 
 and for the payment of certain expenses incidental to 
 such collection. 
 
 Approved by the governor March 24, 1893. Passed, three 
 fifths being present.
 
 N. Y.,I. f. 1.-3.] APPENDIX OF STATUTES. 457 
 
 The people of the state of New York, represented in senate 
 and assembly, do enact as follows: 
 
 § 1. The county treasurer of the county of Kings from lime 
 to time shall retain out of any funds which he may have in 
 his hands on account of the taxes collected under chapter 
 three hundred and ninety-nine of the Laws of Eighteen Hun- 
 dred and Ninety-Two, entitled "An act in relation to taxa- 
 ble transfers of property," such sums of money as shall be 
 sufficient to provide the surrogate of the county of Kings 
 with an assistant to be known as the transfer tax assistant 
 whose salary shall be four thousand dollars a year, payable 
 monthly, and a transfer tax clerk whose salary shall be two 
 thousand dollars a year, payable monthly, and which said 
 transfer tax assistant and transfer lax clerk the surrogate 
 of Kings county is hereby authorized to appoint immedi- 
 ately upon the passage of this act. And the said county 
 treasurer shall also retain out of said funds a further sum 
 not exceeding five hundred dollars in any one year for the 
 necessary expenses of the said surrogate incurred in the as- 
 sessment and collection of said tax. The said salaries and 
 said amount shall be paid upon the certificates and requisi- 
 tions of the said surrogate respectively. 
 
 § 2. Chapter four hundred and forty three of the Laws 
 of Eighteen Hundred and Ninety-Two is hereby repealed. 
 
 § 3. This act shall take effect immediately. 
 
 2. Section 48c, Ch. 692, Laws 1893, p. 1725. 
 
 Appraiser taking fee or reward. 
 
 An appraiser appointed by virtue of the taxable transfers 
 law, who takes any fee or reward from an executor, admin- 
 istrator, trustee, legatee, next of kin, or heir of any dece- 
 dent, or from any other person liable to pay such tax, or any 
 portion thereof, is guilty of a misdemeanor. 
 
 3. Laws 1895, Ch. 861. 
 
 An act to further provide for the collection in the county 
 of Westchester of the tax under the act relating to tax- 
 able transfers of property and the expenses thereof. 
 
 Became a law June 1, 1895, with the approval of the gov- 
 ernor. Passed, three-fifths being present.
 
 458 APPENDIX OF STATUTES. [N. Y. , I. f. 3., 4. 
 
 The people of the state of New York, represented in sen- 
 ate and assembly, do enact as follows: 
 
 § 1. The county treasurer of Westchester county shall an- 
 nually retain out of the funds which may come into his 
 hands on account of the tax collected under chapter three 
 hundred and ninety-nine of the Laws of Eighteen Hundred 
 and Ninety-Two, entitled "An act in relation to taxable 
 transfers of property," and the acts amendatory thereof, 
 sufficient money to pay the salary of a clerk in the surro- 
 gate's office of said county, to be known as the "transfer tax 
 assistant," who shall be appointed by and at pleasure re- 
 moved by the surrogate, whose compensation shall be fixed 
 by said surrogate, not to exceed two thousand dollars a year, 
 payable monthly. 
 
 § 2. This act shall take effect immediately. 
 
 4. Laws 1891, Ch. 34. 
 
 An act in reference to the appraisal of the estates of dece- 
 dents and others. 
 
 Approved by the governor, February 25, 1891. Passed, 
 three-fifths being present. 
 
 The people of the state of New York, represented in sen- 
 ate and assembly, do enact as follows: 
 
 § 1. Whenever by reason of the provisions of any law of 
 this state it shall become necessary to appraise in whole or 
 in part, the estate of any deceased person, or of any insol- 
 vent estate in the hands of a receiver, or of any assignee for 
 the benefit of creditors, or of any corporation in the hands of 
 a receiver or otherwise, the persons whose duty it shall be to 
 make such appraisal shall value the real estate at its full 
 and true value, taking into consideration actual sales of 
 neighboring real estate similarly situated during the year 
 immediately preceding the date of such appraisal, if any: 
 and they shall value all such property, stocks, bonds, or 
 securities as are customarily bought or sold in open market 
 in the city of New York or elsewhere, for the day on which 
 such appraisal or report may be required, by ascertaining 
 the range of the market and the average of prices as thus 
 found, running through a reasonable period of time. 
 
 § 2. This act shall take effect immediately.
 
 N. J., II. a.] APPENDIX OF STATUTES. 459 
 
 II. NEW JERSEY. 
 
 (a) Chapter 210, Laws 1894, P. 318, Repealing Chapter 
 210, Laws 1893, and Chapter 210, Laws 1892. 
 
 Chapter CCX. 
 
 An act to tax intestate estates, gifts, legacies, devises and 
 collateral inheritance in certain cases. 
 
 1. Be it enacted by the senate and general assembly of the 
 state of New Jersey, that after the passage of this act all 
 property which shall pass by will or by the intestate laws 
 of this state from any person wmo may die seized or pos- 
 sessed of the same while being a resident of the state, and 
 all property which shall be within this state, and any part of 
 such property, and any interest therein or income therefrom, 
 which shall be transferred by inheritance, distribution, be- 
 quest, devise, deed, grant, sale or gift as aforesaid, made or 
 intended to take effect in possession or enjoyment after the 
 death of the intestate, testator, grantor or bargainor, to any 
 person or persons, or to a body politic or corporate excepting 
 churches, hospitals and orphan asylums, public libraries, 
 Bible and tract societies and all religious, benevolent and 
 charitable institutions and organizations, in trust or other- 
 wise, or by reason whereof any person or body politic or cor- 
 porate shall become beneficially entitled, in possession or 
 expectancy, to such property, or to the income thereof, other 
 than to or for the use of a father, mother, husband, wife, 
 children, brother or sister, or lineal descendants born in law- 
 ful wedlock, or the wife or widow of a son, or the husband of 
 a daughter, shall be subject to a tax of five dollars on every 
 hundred dollars of the clear market value of such property, 
 to be paid to the treasurer of the state of New Jersey for the 
 use of the state, and all administrators, executors and trus- 
 tees shall be liable for any and all such taxes until the same 
 shall have been paid as hereinafter directed; provided, that 
 an estate which may be valued at a less sum than five hun- 
 dred dollars shall not be subject to said duty or tax. 
 
 2. And be it enacted, that when any person shall bequeath 
 or devise, convey, grant, sell or give as aforesaid any prop- 
 erty, or interest therein, or income therefrom, to a father, 
 mother, husband, wife, children, brother or sister, the widow 
 of a son, or a lineal descendant, during life or for a term of
 
 460 APPENDIX OF STATUTES. [N. J., II. a. 
 
 years, and the remainder to a collateral heir of the decedent, 
 or to a stranger in blood, or to a body politic or corporate, 
 the property so passing- shall be appraised immediately after 
 the death of said testator or grantor, as the case may be, 
 at what shall then be the fair market value thereof, in the 
 manner hereinafter provided, and after deducting therefrom 
 the value of said life estate, or term of years, the tax pre- 
 scribed by this act on the remainder shall be immediately 
 due and payable to the treasurer of the state of New Jersey, 
 and, together with the interest thereon, shall be and remain 
 a lien on said property until the same is paid; provided, 
 that the person or persons, or body politic or corporate bene- 
 ficially interested in the property chargeable with said tax, 
 may elect not to pay the same until they shall come into the 
 actual possession or enjoyment of such property, or, and in 
 that case, such person or persons, or body politic or cor- 
 porate, shall give a bond to the state of New Jersey in a pen- 
 alty three times the amount of the tax arising upon personal 
 estate, with such sureties as the chancellor may approve, 
 conditioned for the payment of said tax and interest thereon, 
 at such time or period as they or their representatives may 
 come into the actual possession or enjoyment of such prop- 
 erty, which bond shall be filed in the office of the clerk in 
 chancery; provided further, that such person shall make a 
 full verified return of such property to the chancellor of the 
 state and file the same in the office of the clerk in chancery 
 within one year from the death of the decedent, and within 
 that period enter into such security and renew the same 
 every five years. 
 
 3. And be it enacted, that whenever a decedent appoints or 
 names one or more executors or trustees, and makes a be- 
 quest or devise of property to them in lieu of their commis- 
 sions or allowances, which otherwise would be liable to said 
 tax, or appoints them his residuary legatees, and said be- 
 quest, devises or residuary legacies exceed what would be a 
 reasonable compensation for their services, such excess shall 
 be liable to said tax, and the chancellor or the orphans' court 
 having jurisdiction in the case shall fix such compensation. 
 
 4. And be it enacted, that all taxes imposed by this act, 
 unless otherwise herein provided for, shall be due and pay- 
 able at the death of the testator, grantor or intestate, as the 
 case may be, and if the same are paid within one year, inter- 
 est at the rate of six per centum per annum shall be charged 
 and collected thereon, but if not so paid, interest at the rate 
 of ten per centum per annum shall be charged and collected
 
 N. J., II. a.] APPENDIX OF STATUTES. 461 
 
 from the time said tax accrued; provided, that if said tax 
 is paid within nine months from the accruing thereof, inter- 
 est shall not be charged or collected thereon, hut a discount 
 of five per centum shall be allowed and deducted from said 
 tax; and in all cases where the executors, administrators or 
 trustees do not pay such tax within one year from the death 
 of the decedent, they shall be required to give a bond, in the 
 form and to the effect prescribed in section two of this act, 
 for the payment of said tax, together with interest. 
 
 5. And be it enacted, that the penalty of ten per centum 
 per annum imposed by section four hereof for the non-pay- 
 ment of said tax shall not be charged, where in cases by rea- 
 son of claims made upon the estate, necessary litigation or 
 other unavoidable cause of delay, the estate of any decedent, 
 or a part thereof, cannot be settled at the end of a year from 
 the death of the decedent, and in such cases only six per 
 centum per annum shall be charged upon the said tax from 
 the expiration of such year until the cause of such delay is 
 removed. 
 
 6. And be it enacted, that any administrator, executor or 
 trustee having in charge or trust any legacy or property 
 for distribution, subject to the said tax, shall deduct the 
 tax therefrom, or if the legacy or property be not money, 
 he shall collect the tax thereon upon the appraised value 
 thereof from the legatee or person entitled to such prop- 
 erty, and he shall not deliver, or be compelled to deliver, 
 any specific legacy or property subject to tax to any per- 
 son until he shall have collected the tax thereon; and 
 whenever any such legacy shall be charged upon or payable 
 out of real estate, the heir or devisee, before paying the 
 same, shall deduct said tax therefrom, and pay the same to 
 the executor, administrator or trustee, and the same shall 
 remain a charge on such real estate until paid, and the pay- 
 ment thereof shall be enforced by the executor, administra- 
 tor or trustee in the same manner that the payment of such 
 legacy might be enforced ; if, however, such legacy be given 
 in money to any person for a limited period, he shall retain 
 the tax upon the whole amount, but if it be not in money, 
 he shall make application to the court having jurisdiction 
 of his accounts, to make an apportionment, if the case re- 
 quire it, of the sum to be paid into his hands by such leg- 
 atees, and for such further order relative thereto as the 
 case may require. 
 
 7. And be it enacted, that all executors, administrators 
 and trustees shall have full power to sell so much of the
 
 462 APPENDIX OF STATUTES. [N. J., II. a. 
 
 property of the decedent as will enable them to pay said 
 tax, in the same manner as they may be enabled by law to 
 do for the payment of debts of their testators and intes- 
 tates, and the amount of said tax shall be paid as herein- 
 after directed. 
 
 8. And be it enacted, that any sum of money retained by 
 any executor, administrator or trustee, or paid into his 
 hands for any tax or any property, shall be paid by him, 
 within thirty days thereafter, to the treasurer of the state 
 of New Jersey; and the said treasurer shall deliver a receipt 
 of such payment to the comptroller of the state, whose duty 
 it shajl be to countersign the same and return it to the exec- 
 utor, administrator or trustee, whereupon it shall be a prop- 
 er voucher in the settlement of his accounts, but an execu- 
 tor, administrator or trustee shall not be entitled to credit 
 in his accounts, nor to be discharged from liability for such 
 tax unless he shall produce a receipt so countersigned by 
 the comptroller, or a copy thereof certified by him. 
 
 9. And be it enacted, that whenever any of the real estate 
 of which any decedent may die seized shall pass to any body, 
 politic or corporate, or to any person other than the father, 
 mother, husband, wife, lawful issue, brother or sister, wife 
 or widow of a son, or husband of a daughter, or in trust for 
 them, or some of them, it shall be the duty of the executors, 
 administrators or trustees of such decedent to give informa- 
 tion thereof in writing to the comptroller of the state with- 
 in six months after they undertake the execution of their 
 respective duties, or, if the fact be not known to them with- 
 in that period, then within one month after the same shall 
 have come to their knowledge. 
 
 10. And be' it enacted, that whenever any debts shall be 
 proven against the estate of a decedent, after the payment 
 of legacies or distribution of property from which the said 
 tax has been deducted, or upon which it has been paid, and 
 a refund is made by the legatee, devisee, heir or next of kin, 
 a proportion of the tax so paid shall be repaid to him by the 
 executor, administrator or trustee, if the said tax has not 
 been paid to the state treasurer, or by them if it has been 
 so paid. 
 
 11. And be it enacted, that whenever any foreign execu- 
 tor or administrator shall assign or transfer any stocks or 
 loans in this state, standing in the name of a decedent, or 
 in trust for a decedent, which shall be liable to the said 
 tax, such tax shall be paid to the state treasurer on the 
 transfer thereof, otherwise the corporation permitting such
 
 N.J. ,11. a.] APPENDIX OF STATUTES. 463 
 
 transfer shall become liable to pay Buch tax; provided, thai 
 such corporation has knowledge before such transfer that 
 said stocks or loans are liable to said tax. 
 
 12. And be it enacted, that when any amount of said tax 
 shall have been paid erroneously to the state treasurer, it 
 shall be lawful for the comptroller of the treasury, on satis 
 factory proof rendered to him of such erroneous payments, 
 to draw his warrant on the state treasurer, in favor of the 
 executor, administrator, person or persons who have paid 
 any such tax in error, or who may be lawfully entitled to 
 receive the same, for the amount of such tax so paid in error: 
 provided, that all such applications for the repayment of 
 such tax, shall be made within two years from the date of 
 such payment. 
 
 13. And be it enacted, that in order to fix the value of 
 property of persons whose estates shall be subject to the 
 payment of said tax, the surrogate or register of the pre- 
 rogative court, on the application of any interested party, or 
 upon his own motion, shall appoint some competent person 
 as appraiser as often as and whenever occasion may require, 
 whose duty it shall be forthwith to give such notice by mail, 
 and to such persons as the surrogate or register of the pre- 
 rogative court may by order direct, of the time and place he 
 will appraise such property, and at such time and place to 
 appraise the same at its fair market value, and make a re- 
 port thereof in writing to said surrogate or register of the 
 prerogative court, together with such other facts in relation 
 thereto as said surrogate or register of the prerogative court 
 may by order require, to be filed in the office of such surro- 
 gate or register of the prerogative court, and from this re- 
 port the said surrogate or register of the prerogative court 
 shall forthwith assess and fix the then cash value of all es- 
 tates, annuities and life estates, or term of years growing- 
 out of said estates, and the tax to which the same is liable, 
 and shall immediately give notice thereof by mail to the 
 state comptroller and to all parties known to be interested 
 therein; any person or persons dissatisfied with said ap- 
 praisement or assessment may appeal therefrom to the or- 
 dinary or orphans' court of the proper county, within sixty 
 days after the making and filing of such assessment, on pay- 
 ing or giving security, approved by the ordinary or orphans' 
 court, to pay all costs, together with whatever tax shall be 
 fixed by said court; the said appraiser shall be paid by the 
 state treasurer on the warrant of the comptroller, on the 
 certificate of the ordinary or surrogate, duly filed with the
 
 464 APPENDIX OF STATUTES. [N. J., II. a. 
 
 comptroller, at the rate of three dollars per day for every 
 day actually and necessarily employed in said appraisement, 
 together with his actual and necessary travelling expenses. 
 
 14. And be it enacted, that any appraiser appointed by vir- 
 tue of this act who shall take any fee or reward from any 
 executor, administrator, trustee, legatee, next of kin or heir 
 of any decedent, or from any other person liable to pay said 
 tax or any portion thereof, shall be guilty of a misdemeanor, 
 and upon conviction in any court having jurisdiction of mis- 
 demeanors he shall be fined not less than two hundred and 
 fifty dollars nor more than five hundred dollars, and im- 
 prisoned not exceeding ninety days; and in addition thereto 
 the register of the prerogative court or surrogate shall dis- 
 miss him from such service. 
 
 15. And be it enacted, that the ordinary or the orphans' 
 court in the county in which the real propery is situate of a 
 decedent who was not a resident of the state, or in the county 
 of which the decedent was a resident at the time of his 
 death, shall have jurisdiction to hear and determine all ques- 
 tions in relation to the tax arising under the provisions of 
 this act. 
 
 10. And be it enacted, that if it shall appear to the regis- 
 ter of the prerogative court or surrogate that any tax accru- 
 ing under this act has not been paid according to law, such 
 officer shall issue a citation citing the persons interested in 
 the property liable to the tax to appear before the ordinary 
 or orphans' court on a day certain, not more than three 
 months after the date of such citation, and show cause why 
 said tax should not be paid; the service of such citation 
 and the time, manner and proof thereof and fees therefor, 
 and the hearing and determination thereon, and the enforce- 
 ment of the determination or decree shall conform to the 
 provisions of the law for the service of citations now issued 
 by the ordinary or orphans' court, and the hearing and de- 
 termination thereon and its enforcement; and the register 
 of the prerogative court or surrogate shall, upon the request 
 of any prosecutor of the pleas or the state comptroller, fur- 
 nish one or more transcripts of such decree, and the same 
 may be by them docketed and filed by the county clerk of 
 any county in the state, and the same shall have the same 
 effect as a lien by judgment. 
 
 17. And be it enacted, that whenever the state comptroller 
 shall have reason to believe that any tax is due and unpaid 
 under this act, after the refusal or neglect of the persons 
 interested in the property liable to said tax to pay the same,
 
 N. J, II. a.] APPENDIX OF STATUTES. 465 
 
 he shall notify the prosecutor of the pleas of the proper 
 county, in writing, of such failure to pay such tax, and the 
 prosecutor of the pleas so notified, if he have probable cause 
 to believe a tax is due and unpaid, shall prosecute the pro- 
 ceeding before the ordinary of the orphans' court in the 
 proper county, as provided in section sixteen of this act, for 
 the enforcement and collection of such tax; all costs award- 
 ed by such decree to such prosecutor that may be collected 
 after the collection and payment of the tax to the state treas- 
 urer, may be retained by the prosecutor of the pleas for his 
 own use. 
 
 18. And be it enacted, that the register of the prerogative 
 court, the surrogate, and the register of deeds or county clerk 
 of each county shall every three months make a statement, 
 in writing, to the state comptroller of the property from 
 which or the party from whom he has reason to believe a tax 
 under this act has become due since his last report. 
 
 19. And be it enacted, that whenever the surrogate of any 
 county, or the register of the prerogative court, shall certify 
 to the state comptroller, that there was probable cause for 
 issuing a citation and taking the proceedings specified in 
 section sixteen of this act, the state treasurer shall pay, upon 
 the warrant of the comptroller, to the proper officials all ex- 
 penses incurred for the issuing and services of the citation 
 and all other lawful disbursements that have not otherwise 
 been paid. 
 
 20. And be it enacted, that the comptroller of the state 
 shall furnish to the register of the prerogative court and to 
 each surrogate a book in which he shall enter, or cause to 
 be entered, the returns made by appraisers, the cash value 
 of annuities, life estates and term of years, and other prop- 
 erty fixed by him, and the tax assessed thereon, and the 
 amounts of any receipts for payments thereon filed with 
 him, which books shall be kept in the ofiice of the register of 
 the prerogative court or the surrogate as a public record, 
 and shall furnish all other forms and blanks necessary 
 for use in the proper enforcement of this law. 
 
 21. And be it enacted, that in addition to the fees above 
 mentioned the fees of the surrogates for each county for the 
 duties heretofore or hereafter to be performed by them in 
 each estate under this act or any act heretofore passed shall 
 be paid by the state treasurer upon the warrant of the 
 comptroller, and shall not exceed the following rates: On 
 all sums paid to the state treasurer, not exceeding three 
 
 law inher. — 30
 
 466 APPENDIX OF STATUTES. [N. J. , II. a. 
 
 thousand dollars, five per centum; if over three thousand 
 dollars, three per centum on such excess. 
 
 22. And be it enacted, that any person or body politic or 
 corporate shall be entitled to a receipt from the state treas- 
 urer, countersigned by the state comptroller, for the pay- 
 ment of any tax paid under this act, which receipt shall 
 designate on what real property, if any, of which any dece- 
 dent may have died seized, said tax has been paid and by 
 whom paid, and whether or not it is in full of said tax, and 
 said receipt may be recorded in the clerk's office of the 
 county in which said property is situate, in a book to be kept 
 by said clerk for such purpose, which shall be labeled "Col- 
 lateral Tax." 
 
 23. And be it enacted, that all acts or parts of acts incon- 
 sistent with the provisions of this act are hereby repealed, 
 except so far as herein re-enacted; but nothing in this re- 
 pealer shall affect or impair the lien of any taxes heretofore 
 assessed, or due and payable, or any remedies for the collec- 
 tion of the same, or to surrender any remedies, powers, 
 rights, or privileges acquired by the state under any act 
 heretofore passed, or to relieve any person or corporation 
 from any penalty imposed by said acts; provided, however, 
 that the exception in the first section hereof in favor of 
 churches, hospitals, orphan asylums, public libraries, Bible 
 and tract societies, and all religious, benevolent and chari- 
 table institutions and organizations, shall be construed and 
 held to apply to any and all bequests, devises and legacies 
 heretofore made, in trust or otherwise, to or in favor of such 
 institutions, or any of them, in all cases where said tax shall 
 not have been paid prior to the passage of this act. 
 
 24. And be it enacted, that this act shall take effect im- 
 mediately. 
 
 Approved May 15, 1894.
 
 Pa., III. a.] APPENDIX OF STATUTES. 467 
 
 III. PENNSYLVANIA. 
 
 (a) Laws 1887, No. 37, P. 79. 
 
 An act to provide for the better collection of collateral in- 
 heritance taxes. 
 
 Designation of estates subject to the payment of 
 collateral inheritance tax — Owners, executors, 
 &c, only to be discharged by payment — Estates 
 of less than $250 not to be subject to tax. 
 
 § 1. Be it enacted by the senate and house of representa- 
 tives of the commonwealth of Pennsylvania in general as- 
 sembly met, and it is hereby enacted by the authority of the 
 same, that all estates, real, personal and mixed, of every 
 kind whatsoever, situated within this state, whether the per- 
 son or persons dying seized thereof be domiciled within or 
 out of this state, and all such estates situated in another 
 state, territory, or country, when the person, or persons, dy- 
 ing seized thereof shall have their domicile, within this com- 
 monwealth, passing from any person, who may die seized or 
 possessed of such estates, either by will, or under the intes- 
 tate laws of this state, or any part of such estate, or estates, 
 or interest therein, transferred by deed, grant, bargain, or 
 sale, made or intended to take effect, in possession or enjoy- 
 ment after the death of the grantor, or bargainer to any 
 person, or persons, or to bodies corporate or politic, in trust 
 or otherwise, other than to or for the use of father, mother, 
 husband, wife, children and lineal descendants born in law- 
 ful wedlock, or the wife or widow of the son of the person 
 dying seized or possessed thereof, shall be and they are 
 hereby made subject to a tax of five dollars on every hun- 
 dred dollars of the clear value of such estate or estates, and 
 at and after the same rate for any less amount, to be paid 
 to the use of the commonwealth ; and all owners of such es- 
 tates, and all executors and administrators and their sure- 
 ties shall only be discharged from liability for the amount 
 of such taxes or duties, the settlement of which they may 
 be charged with, by having paid the same over for the use 
 aforesaid, as hereinafter directed: provided, that no estate 
 which may be valued at a less sum than two hundred and 
 fifty dollars shall be subject to the duty or tax.
 
 468 APPENDIX OF statutes. [Pa. , III. a. 
 
 Executors, accepting bequests, &c, in lieu of com- 
 missions, to pay tax on amount above a fair 
 compensation — Rate of, to be fixed by the court. 
 
 § 2. Where a testator appoints or names one or more ex- 
 ecutors and makes a bequest or devise of property to them, 
 in lieu of their commissions or allowances, or appoints them 
 his residuary legatees, and said bequests, devises, or resid- 
 uary legacies exceed what w r ould be a fair compensation for 
 their services, such excess shall be subject to the payment 
 of the collateral inheritance tax; the rate of compensation 
 to be fixed by the proper courts having jurisdiction in the 
 case. 
 
 Persons entitled to reversionary interests need not 
 pay tax nor be chargeable with interest thereon 
 until actual possession is acquired — Tax to be as- 
 sessed upon value at time possession begins — 
 Tax may be paid before possession is had. Basis 
 of assessment — Tax to remain a lien until paid — 
 Return of personal estate — Security. 
 
 § 3. In all cases where there has been or shall be a devise, 
 descent or bequest to collateral relatives or strangers, liable 
 to the collateral inheritance tax, to take effect in possession, 
 or come into actual enjoyment after the expiration of one 
 or more life estates, or a period of years, the tax on such 
 estate shall not be payable, nor interest begin to run there- 
 on, until the person or persons liable for the same shall come 
 into actual possession of such estate, by the termination of 
 the estates for life or years, and the tax shall be assessed 
 upon the value of the estate at the time the right of posses- 
 sion accrues to the owner as aforesaid: provided, that the 
 owner shall have the right to pay the tax at any time prior 
 to his coming into possession, and in such cases, the tax shall 
 be assessed on the value of the estate at the time of the 
 payment of the tax, after deducting the value of the life es- 
 tate or estates for years: and provided further, that the tax 
 on real estate shall remain a lien on the real estate on which 
 the same is chargeable until paid. And the owner of any 
 personal estate shall make a full return of the same to the 
 register of wills of the proper county within one year from 
 the death of the decedent, and within that time enter into 
 security for the payment of the tax to the satisfaction of 
 such register; and in case of failure so to do, the tax shall 
 be immediately payable and collectible.
 
 Pa., III. a.] APPENDIX OF STATUTES. 460 
 
 When discount of 5 per cent, is to be allowed — 
 When interest of 12 per cent, to be charged — 
 When only 6 per cent, interest — When interest 
 need not exceed interest made by estate. 
 
 § 4. If the collateral inheritance tax shall be paid within 
 three months after the death of the decedent, a discount of 
 five per centum shall be made and allowed; and if the said 
 tax is not paid at the end of one year from the death of the 
 decedent, interest shall then be charged at the rate of twelve 
 per centum per annum on such tax; but where from claims 
 made upon the estate, litigation, or other unavoidable cause 
 of delay, the estate of any decedent or a part thereof cannot 
 be settled up at the end of the year from his or her decease, 
 six per centum per annum shall be charged upon the collat- 
 eral inheritance tax, arising from the unsettled part thereof, 
 from the end of such year until there be default: provided 
 further, that where real or personal estate withheld by rea- 
 son of litigation or other cause of delay in manner aforesaid 
 from the parties entitled thereto, subject to said tax, has not 
 been, or shall not be productive to the extent of six per 
 centum per annum, they shall not be compelled to pay a 
 greater amount as interest to the commonwealth than they 
 may have realized, or shall realize from such estate during 
 the time the same has been or shall be withheld as aforesaid. 
 
 Executors, &c, to deduct tax from pecuniary 
 legacy or share — To demand payment on specific 
 legacy — Money due state to be promptly paid. 
 
 § 5. The executor, or administrator, or other trustee, paying 
 any legacy or share in the distribution of any estate, subject 
 to the collateral inheritance tax, shall deduct therefrom at 
 the rate of five dollars in every hundred dollars, upon the 
 whole legacy or sum paid ; or if not money, he shall demand 
 payment of a sum, to be computed at the same rate, upon the 
 appraised value thereof, for the use of the commonwealth; 
 and no executor or administrator shall be compelled to pay 
 or deliver any specific legacy or article to be distributed, 
 subject to tax, except on the payment into his hands of a 
 sum computed on its value as aforesaid; and in case of neg- 
 lect or refusal on the part of said legatee to pay the same, 
 such specific legacy or article, or so much thereof as shall 
 be necessary, shall be sold by such executor or administra- 
 tor at public sale, after notice to such legatee, and the bal- 
 ance that may be left in the hands of the executor or admin-
 
 470 appendix of statutes. [Pa., III. a. 
 
 istrator shall be distributed, as is or may be directed by law ; 
 and every sum of money retained by any executor or admin- 
 istrator, or paid into his hands on account of any legacy or 
 distributive share, for the use of the commonwealth, shall 
 be paid by him without delay. 
 
 Provision where legacy is given for limited period 
 upon a condition or contingency. 
 
 § 6. If the legacy subject to collateral inheritance tax be 
 given to any person for life, or for a term of years, or for 
 any other limited period, upon a condition or contingency, if 
 the same be money, the tax thereon shall be retained upon 
 the whole amount; but if not money, application shall be 
 made to the orphans' court having jurisdiction of the ac- 
 counts of the executors or administrators to make appor- 
 tionment, if the case requires it, of the sum to be paid by 
 such legatees, and for such further order relative thereto as 
 equity shall require. 
 
 Rule -where legacy is charged upon real estate. 
 
 § 7. Whenever such legacy shall be charged upon or pay- 
 able out of real estate, the heir or devisee, before paying the 
 same, shall deduct therefrom at the rate aforesaid, and pay 
 the amount so deducted to the executor, and the same shall 
 remain a charge upon such real estate until paid, and the 
 payment thereof shall be enforced by the decree of the or- 
 phans' court, in the same manner as the payment of such 
 legacy may be enforced. 
 
 Duty of executors, &c., as regards real estate. 
 
 § 8. Whenever any real estate of which any decedent may 
 die seized shall be subject to the collateral inheritance tax, 
 it shall be the duty of executors and administrators to give 
 information thereof to the register of the county, where ad- 
 ministration has been granted, within six months after they 
 undertake the execution of their respective duties, or if the 
 fact be not known to them within that period, within one 
 month after the same shall have come to their knowledge, 
 and it shall be the duty of the owners of such estate, imme- 
 diately upon the vesting of the estate, to give information 
 thereof to the register having jurisdiction of the granting of 
 administration.
 
 Pa., III. a ] APPENDIX OF STATUTES. 471 
 
 Executors, &c, to take receipts. 
 
 § 9. It shall be the duty of any executor or administrator, 
 on the payment of collateral inheritance tax, to take dupli- 
 cate receipts from the register, one of which shall be for- 
 warded forthwith to the auditor-general, whose duty it shall 
 be to charge the register receiving the money with the 
 amount, and seal with the seal of his office, and counter- 
 sign the receipt and transmit it to the executor or adminis- 
 trator, whereupon it shall be a proper voucher in the settle- 
 ment of the estate ; but in no event shall an executor or ad- 
 ministrator be entitled to a credit in his account by the reg- 
 ister, unless the receipt is so sealed and countersigned by 
 the auditor-general. 
 
 Foreign executors to pay tax on stocks. 
 
 § 10. Whenever any foreign executor, or administrator, 
 or trustee, shall assign or transfer any stocks or loans in this 
 commonwealth, standing in the name of the decedent, or in 
 trust for a decedent, which Shall be liable for the collateral 
 inheritance tax, such tax shall be paid, on the transfer there- 
 of, to the register of the county where such transfer is made; 
 otherwise the corporation permitting such transfer shall be- 
 come liable to pay such tax. 
 
 When tax to be refunded for debts paid. 
 
 § 11. Whenever debts shall be proven against the estate 
 of a decedent, after distribution of legacies from which the 
 collateral inheritance tax has been deducted, in compliance 
 with this act, and the legatee is required to refund any por- 
 tion of a legacy, a proportion of the said tax shall be repaid 
 to him by the executor or administrator, if the said tax has 
 not been paid into the state or county treasury, or by the 
 county treasurer, if it has been so paid. 
 
 Appraiser, how appointed and duties of. 
 
 § 12. It shall be the duty of the register of wills of the 
 county in which letters testamentary, or of administration, 
 are granted, to appoint an appraiser as often as, and when- 
 ever occasion may require, to fix the valuation of estates 
 which are, or shall be, subject to collateral inheritance tax, 
 and it shall be the duty of such appraiser to make a fair and 
 conscionable appraisement of such estates, and it shall fur- 
 ther be the duty of such appraiser to assess and fix the cash
 
 472 ATPEXDIX OF statutes. [Pa. , III. a. 
 
 value of all annuities and life estates growing out of said 
 estates, upon which annuities and life estates the collateral 
 inheritance tax shall be immediately payable out of the es- 
 tate at the rate of such valuation: Provided, that any per- 
 son or persons not satisfied with said appraisement shall 
 have the right to appeal, within thirty days, to the orphans' 
 court of the proper county or city, on paying, or giving se- 
 curity to pay, all costs, together with whatever tax shall be 
 fixed by said court, and upon such appeal said courts shall 
 have jurisdiction to determine all questions of valuation, 
 and of the liability of the appraised estate for such tax, sub- 
 ject to the right of appeal to the supreme court as in other 
 cases. 
 
 Penalty for appraiser taking reward, &c. 
 
 § 13. It shall be a misdemeanor in any appraiser, appoint- 
 ed by the register to make any appraisement in behalf of the 
 commonwealth, to take any fee or reward from any executor 
 or administrator, legatee, next of kin, or heir of any dece- 
 dent, and for any such offense the register shall dismiss him 
 from such service, and upon conviction in the quarter ses- 
 sions, he shall be fined not exceeding five hundred dollars, 
 and imprisoned not exceeding one year, or both, or either, at 
 the discretion of the court. 
 
 Returns made by appraiser to be recorded. 
 
 14. It shall be the duty of the register of wills to enter in 
 a book, to be provided at the expense of the commonwealth, 
 to be kept for that purpose, and which shall be a public rec- 
 ord the returns made by all appraisers under this act, open- 
 ing an account in favor of the commonwealth against the 
 decedent's estate, and the register may give certificate of 
 payment of such tax from said record, and it shall be the 
 duty of the register to transmit to the auditor-general, on 
 the first day of each month, a statement of all returns made 
 by appraisers during the preceding month, upon which the 
 taxes remain unpaid, which statement shall be entered by 
 the auditor-general in a book to be kept by him for that pur- 
 pose. And whenever any such tax shall have remained due 
 and unpaid for one year, it shall be lawful for the register 
 to apply to the orphans' court, by bill or petition, to enforce 
 the payment of the same, whereupon said court, having 
 caused due notice to be given to the owner of the real estate 
 charged with the tax, and to such other persons as may be
 
 Pa. ,111. a.] APPENDIX OF STATUTES 473 
 
 interested, shall proceed, according to equity, to make such 
 decrees, or orders, for the payment of the said tax, out of 
 such real estate, as shall be just and proper. 
 
 On default of payment of tax, citation to issue to 
 parties liable. 
 
 § 15. If the register shall discover that any collateral in- 
 heritance tax has not been paid over, according to law, the 
 orphans' court shall be authorized to cite the executors or 
 administrators of the decedent, whose estate is subject to 
 the tax, to file an account or to issue a citation to the exec- 
 utors, administrators, or heirs, citing them to appear on a 
 certain day and show cause why the said tax should not be 
 paid, and when personal service cannot be had, notice shall 
 be given for four weeks, once a week, in at least one news- 
 paper published in said county, and if the said tax shall be 
 found to be due and unpaid, the said delinquent shall pay 
 said tax and costs. And it shall be the duty of the register, 
 or of the auditor-general, to employ an attorney, of the prop- 
 er county, to sue for the recovery and amount of such tax, 
 and the auditor-general is authorized and empowered, in 
 settlement of accounts of any register, to allow him costs 
 of advertising and other reasonable fees and expenses in- 
 curred in the collection of taxes. 
 
 Registers of -wills, compensations. 
 
 § 1G. The register of wills, of the several counties of this 
 commonwealth, upon their filing with the auditor-general 
 the bond hereafter required, shall be the agents of the com- 
 monwealth for the collection of the collateral inheritance 
 tax ; and for services rendered in collecting and paying over 
 the same the said agents shall be allowed to retain for their 
 own use five per centum upon the collateral inheritance tax 
 collected, if the said tax shall amount to a sum less than 
 two hundred thousand dollars in any year; or four per cent- 
 um upon the said tax, if the same shall amount to two hun- 
 dred thousand dollars and less than three hundred thousand 
 dollars in any year; or three per centum upon the said tax, 
 if the tax collected shall amount to three hundred thousand 
 dollars or more in any year; provided further, that this sec- 
 tion shall not apply to the fees of the registers elected prior 
 to the passage of this act. [As amended May 14, 1891; 
 Laws Pa, 1891, p. 59.]
 
 -4 74 appendix of statutes. [Pa., III. a. 
 
 To give bond. 
 
 § 17. The said register shall give bond to the common- 
 wealth in such penal sum as the orphans' court of the county 
 may direct, with two, or more, sufficient sureties for the 
 faithful performance of the duties hereby imposed and for 
 the regular accounting and paying over of the amounts to 
 be collected and received, and said bond, on its execution 
 and approval, by the said orphans' court, to be forwarded to 
 the auditor-general. 
 
 County treasurer, ■when to collect tax. 
 
 § 18. Until bond and security be given, as required by the 
 preceding section, the said collateral inheritance tax shall be 
 received and collected by the county treasurer as heretofore, 
 and in such cases all the provisions of this act, relating to 
 collection and payment by registers, shall apply- to the coun- 
 ty treasurer. 
 
 Register to make quarterly returns. 
 
 § 19. It shall be the duty of the register of wills, of each 
 county, to make returns and payment to the state treasurer 
 of all the collateral inheritance taxes he shall have received, 
 stating for what estate paid, on the first Mondays of April, 
 July, October and January, in each year, and for all taxes 
 collected by him and not paid over within one month, after 
 his quarterly return of the same, he shall pay interest at 
 the rate of twelve per centum per annum until paid. 
 
 Tax to remain a lien until paid. 
 
 § 20. The lien of the collateral inheritance tax shall con- 
 tinue until the said tax is settled and satisfied: provided, 
 that the said lien shall be limited to the property chargeable 
 therewith: and provided further, that all collateral inherit- 
 ance taxes shall be sued for within five years after they are 
 due and legally demandable, otherwise they shall be pre- 
 sumed to have been paid and cease to be a lien as against 
 any purchasers of real estate : and provided further, that all 
 taxes due and legally demandable at the date of the passage 
 of this act, the collection of which would be barred by the 
 provisions hereof, shall riot b' barred if suit shall be brought 
 therefor within one year from the date of the passage of this 
 act.
 
 Pa., III. a., b.] appendix of statutes. 475 
 
 § 21. All laws, or parts of laws, heretofore approved, re- 
 lating to the collection of the collateral inheritance tax, and 
 inconsistent herewith, be and the same are hereby repealed. 
 
 Approved May 6, 1887. 
 
 (b) No. 243, Laws 1895, P. 325. 
 
 An act, fixing the compensation of appraisers appointed by 
 the registers of wills of the several counties to appraise 
 the value of estates subject to the payment of collateral 
 inheritance tax, and of experts employed to assist such 
 appraisers. 
 
 Compensation of appraisers — Traveling expenses 
 allowed — Sworn statement of expenses. 
 
 § 1. Be it enacted, &c, that from and after the passage of 
 this act, the compensation of appraisers appointed by the 
 registers of wills of the several counties of the commonwealth 
 to fix the value of estates which are or may hereafter be sub- 
 ject to collateral inheritance tax shall be as follows, namely: 
 For each and every day on which an appraiser shall actually 
 be engaged in making appraisement of property subject to 
 said tax, he shall receive the sum of two dollars; provided, 
 that if, in the discharge of his duties, it shall be necessary 
 for him, the said appraiser, to travel from his place of resi- 
 dence to appraise property subject to said tax, he shall be 
 allowed such actual necessary traveling expenses as he may 
 incur, which expenses shall be itemized in a sworn state- 
 ment to be returned to the register and subject to the final 
 approval of the auditor general. 
 
 Expert appraiser may be appointed when neces- 
 sary — Additional compensation may be allowed 
 expert — Appraiser may employ expert to assist 
 him — Register of wills must certify to auditor 
 general that expert appraiser is necessary or that 
 an expert assistant is necessary — Auditor general 
 must approve appointments — Itemized statement 
 of services performed, etc., must be rendered to 
 auditor general — Clerk in office of register of 
 wills shall not be appointed as expert. 
 
 § 2. It is hereby further provided and enacted that when, 
 by virtue of the complicated nature of an estate subject to
 
 476 APPENDIX OF statutes. [Pa., III. b. 
 
 the payment of collateral inheritance tax, the interest of the 
 commonwealth shall require the appointment, as appraiser 
 of said estate, of a person possessed of expert or technical 
 knowledge to ascertain the value thereof, reasonable addi- 
 tional compensation shall be allowed said appraiser for the 
 exercise of such expert or technical knowledge, and in cases 
 where, after the appointment of an appraiser to appraise 
 the value of an estate subject to the payment of collateral 
 inheritance tax, it shall appear that the proper appraise- 
 ment of said estate will require the services of a person 
 possessed of expert or technical knowledge whereof the ap- 
 praiser appointed to appraise said estate is not possessed, 
 he, the said appraiser, may employ the services of a person 
 possessed of expert or technical knowledge to assist him in 
 the appraisement of said estate, and for such services the 
 person so employed shall receive reasonable compensation: 
 provided, that in all such cases the register of wills appoint- 
 ing the appraiser shall certify to the auditor general, that 
 there is actual necessity for the appointment of an appraiser 
 possessed of expert or technical knowledge, or that the ap- 
 praiser already appointed to appraise the estate in question 
 should be assisted by a person possessed of such knowledge, 
 and no person shall be appointed as such expert appraiser, 
 or as expert assistant to an appraiser, without the approval 
 of the auditor general of said appointment first had and ob- 
 tained, nor shall any payment be made to any appraiser, or 
 to any person employed by him, under this section, until an 
 itemized statement of the services performed and the com- 
 pensation recommended shall have been rendered, under 
 oath or affirmation, to the auditor general for his approval 
 and shall have received the same: and provided further, 
 that no clerk or other person employed in the office of a reg- 
 ister of wills shall be appointed an expert appraiser of an 
 estate subject to the payment of collateral inheritance tax, 
 nor as an expert to assist the appraiser of such estate. 
 Approved the 26th day of June, A. D. 1895.
 
 Mass. , IV. a.] appendix of statutes. 477 
 
 IV. MASSACHUSETTS. 
 
 (a) Chapter 425, Laws 1891, with Amendments to 1895. 
 
 An act imposing a tax on collateral legacies and successions. 
 Be it enacted, etc., as follows: 
 
 Tax imposed on collateral legacies and successions. 
 
 § 1. All property within the jurisdiction of the common- 
 wealth, and any interest therein, whether belonging to in- 
 habitants of the commonwealth or not, and whether tangible 
 or intangible, which shall pass by will or by the laws of the 
 commonwealth regulating intestate succession, or by deed, 
 grant, sale or gift, made or intended to take effect in posses- 
 sion or enjoyment after the death of the grantor, to any per- 
 son in trust or otherwise, other than to or for the use of the 
 father, mother, husband, wife, lineal descendant, brother, 
 sister, adopted child, the lineal descendant of any adopted 
 child, the wife or widow of a son, or the husband of a daugh- 
 ter of a decedent, or to or for charitable, educational or re- 
 ligious societies or institutions, the property of which is 
 exempt by law from taxation, shall be subject to a tax of 
 five per centum of its value, for the use of the common- 
 wealth; and all administrators, executors and trustees, and 
 any such grantee, under a conveyance made during the 
 grantor's life, shall be liable for all such taxes, with lawful 
 interest as hereinafter provided, until the same have been 
 paid as hereinafter directed; provided, however, that no 
 estate shall be subject to the provisions of this act unless 
 the value of the same, after the payment of all debts, shall 
 exceed the sum of ten thousand dollars. 
 
 Property bequeathed to direct heir for term of 
 years. 
 
 § 2. When any person bequeaths or devises any property 
 to or for the use of father, mother, husband, wife, lineal de- 
 scendant, brother, sister, an adopted child, the lineal de- 
 scendant of any adopted child, the wife or widow of a son, or 
 the husband of a daughter, during life or for a term of years, 
 and the remainder to a collateral heir or to a stranger to the 
 blood, the value of the prior estate shall, within three 
 months after the date of giving bond by the executor, ad-
 
 478 appendix of statutes. [Mass. , IV. a. 
 
 ministrator or trustee, be appraised in the manner herein- 
 after provided, and deducted from the appraised value of 
 such property, and the remainder shall be subject to a tax 
 of five per centum of its value. 
 
 Property, in excess of reasonable compensation, be- 
 queathed to executors, etc. 
 
 § 3. Whenever a decedent appoints one or more executors 
 or trustees, and in lieu of their allowance makes a bequest 
 or devise of property to them which would otherwise be lia- 
 ble to said tax, or appoints them his residuary legatees, 
 and said bequests, devises or residuary legacies exceed what 
 would be a reasonable compensation for their services, such 
 excess shall be liable to such tax, and the probate court 
 having jurisdiction of their accounts, upon the application 
 of any one interested or the treasurer of the commonwealth, 
 shall fix such compensation. 
 
 Taxes payable to the treasurer of the common- 
 wealth. 
 
 § 4. All taxes imposed by this act shall be payable to the 
 treasurer of the commonwealth by the executors, adminis- 
 trators or trustees, at the expiration of two years from the 
 date of their giving bond; provided that whenever legacies 
 or distributive shares are paid within the two years, the 
 taxes thereon shall be payable at the time the same are paid. 
 
 In case, however, where the probate court has ordered the 
 executor or administrator to retain the funds to satisfy a 
 claim of a creditor whose right of action for which does not 
 accrue within the two years, the payment of the tax may 
 be suspended by an order of the court to await the dis- 
 position of such claim. If the taxes are not paid when 
 due, interest at the rate of six per cent, per annum shall be 
 charged and collected from the time the same became due; 
 and the taxes and interest that may accrue on the same shall 
 be and remain a lien on the property subject to the taxes till 
 the same are paid to the commonwealth. 
 
 [As amended by chapter 430, Laws 1895.] 
 
 Administrator, &c, to collect the tax. 
 
 § 5. Any administrator, executor or trustee having in 
 charge or trust, any property subject to said tax, shall de- 
 duct the tax therefrom, or shall collect the tax thereon, 
 from the legatee or person entitled to said property, and he
 
 Mass., IV. a.] appendix of statutes. 479 
 
 shall not deliver any specific legacy or property subjed to 
 said tax to any person until lie has collected the tax thereon. 
 
 Tax to be deducted -when legacies are charged 
 upon real estate, &c. 
 
 § G. Whenever any legacies, subject to said tax are 
 charged upon or payable out of, any real estate, the heir 
 or devisee, before paying the same, shall deduct said tax 
 therefrom, and pay it to the executor, administrator or 
 trustee, and the same shall remain a charge upon said real 
 estate until it is paid; and payment thereof shall be en- 
 forced by the executor, administrator and trustee, in the 
 same manner as the payment of the legacy itself could be 
 enforced. 
 
 Tax to be retained when money is given for a 
 limited period, &c. 
 
 § 7. If any such legacy is given in money to any person for 
 a limited period, such administrator, executor or trustee 
 shall retain the tax on the whole amount; and if it is not in 
 money, he shall make an application to the court having 
 jurisdiction of his accounts to make an apportionment, if 
 the case requires it, of the sum to be paid into his hands by 
 such legatee on account of said tax, and for such further 
 orders as the case may require. 
 
 Real estate may be sold for payment of the tax. 
 
 § 8. The probate court may authorize administrators, 
 executors and trustees to sell real estate of one deceased for 
 the payment of said tax, in the same manner as adminis- 
 trators and executors may be authorized to sell real estate 
 for the payment of debts. 
 
 Inventory to be filed -within 3 months. 
 
 § 9. An inventory of every estate, any part of which may 
 be subject to a tax under the provisions of this act, shall be 
 filed by the executor, administrator or trustee, within three 
 months from his appointment and qualification. In case 
 such executor, administrator or trustee neglects or refuses 
 to file such inventory as above required, he shall be liable 
 to a penalty of not more than one thousand dollars, and the 
 treasurer of the commonwealth may, when in his judgment 
 the interests of the commonwealth require, commence in his
 
 480 appendix of statutes. [Mass. , IV. a. 
 
 own name appropriate proceedings against such executor, 
 administrator or trustee for the recovery of such penalty; 
 and it shall be the duty of the several registers of probate 
 to notify the treasurer of the commonwealth, within thirty 
 days of the expiration of the said three months, of any such 
 neglect or refusal which may occur in their respective 
 counties. 
 
 [As amended, Laws 1895, c. 430.] 
 
 Copy of inventory to be mailed to the treasurer of 
 the commonwealth. 
 
 § 10. A copy of the inventory of every estate, any part of 
 which may be subject to a tax under the provisions of this 
 act, or if the same can be conveniently separated, then a 
 copy of the inventory of such part of such estate, with the 
 appraisal thereof, shall be sent by mail, by the register of the 
 probate court in which such inventory is filed, to the treas- 
 urer of the commonwealth within thirty days after the same 
 is filed. The fees for such copy shall be paid by the treas- 
 urer of the commonwealth. 
 
 Treasurer of commonwealth to be informed when 
 real estate becomes subject to tax. 
 
 § 11. Whenever any of the real estate of a decedent shall 
 so pass to another person as to become subject to said tax, 
 the executor, administrator or trustee of the decedent shall 
 inform the treasurer of the commonwealth thereof within 
 six months after he has assumed the duties of his trust or 
 if the fact is not known to him within that time, then with- 
 in one month from the time when the fact becomes known 
 to him. 
 
 Tax to be refunded when wrongfully paid. 
 
 § 12. Whenever, for any reason, the devisee, legatee or 
 heir, who has paid any such tax, afterwards refunds any por- 
 tion of the property on which it was paid, or it is judicially 
 determined that the whole or any part of such tax ought not 
 to have been paid, said tax, or the due proportional part of 
 said tax shall be paid back to him by the executor, admin- 
 istrator or trustee. 
 
 To be assessed on market value of property. 
 
 § 13. The value of such property as may be subject to said 
 tax shall be its actual value, as found by the probate, but
 
 Mass., IV. a.] appendix of statutes. 481 
 
 the treasurer of the commonwealth, or any person interested 
 in the succession to said property, may apply to the probate 
 court having jurisdiction of the estate, and on such applica- 
 tion said court shall appoint three disinterested persons 
 who, being first sworn, shall appraise such property at its 
 actual market value, for the purposes of said tax, and shall 
 make return thereof, to said court, which return may be 
 accepted by said court; and if so accepted it shall be bind- 
 ing upon the person by whom the tax is to be paid, and upon 
 the commonwealth. And the fees of the appraiser shall be 
 fixed by the judge of probate and paid by the treasurer of 
 the commonwealth. 
 
 Value of an annuity or life estate. 
 
 In case of an annuity or life estate the value thereof 
 shall be determined by the so-called actuaries' combined ex- 
 perience tables and four per cent, compound interest. 
 
 Court to have jurisdiction to determine all ques- 
 tions relating to tax. 
 
 § 14. The probate court having jurisdiction of the settle- 
 ment of the estate of the decedent, shall have jurisdiction to 
 hear and determine all questions in relation to said tax that 
 may arise affecting any devise, legacy or inheritance under 
 this act, subject to appeal as in other cases, and the treas- 
 urer of the commonwealth shall represent the interests of 
 the commonwealth in any such proceedings. 
 
 Administration of estate liable to tax -when -will, 
 etc., is not offered for probate within four months. 
 
 § 15. If, upon the decease of any person leaving an estate li- 
 able to a tax under the provisions of this act, a will disposing 
 of such estate is not offered for probate, or an application for 
 administration made within four months from the time of 
 such decease, the treasurer of the commonwealth may make 
 application to the proper probate court, setting forth such 
 fact and praying that an administrator may be appointed, 
 and thereupon said court shall appoint an administrator 
 to administer upon such estate. 
 
 Final settlement not to be allowed until all taxes 
 have been paid. 
 
 § 16. No final settlement of the account of any executor, 
 administrator or trustee, shall be accepted or allowed by any 
 law inher. — 31
 
 482 appendix of statutes. [Mass. , IV. a. , b. 
 
 probate court unless such account shows, and the judge of 
 said court finds, that all taxes imposed by the provisions of 
 this act upon any property or interest therein, belonging to 
 the estate to be settled by said account, have been paid; and 
 the receipt of the treasurer of the commonwealth for such 
 tax, but in case such tax has been paid to a county treasurer 
 as hereinbefore provided, then such officer's receipt shall be 
 the proper voucher for such payment. 
 
 Words "person" and "property" denned. 
 
 § 17. In the foregoing sections the word "person" shall in- 
 clude the plural as well as the singular, and artificial as well 
 as natural persons; the word "property" shall include both 
 real and personal estate, and any forms of interest therein 
 whatsoever, including annuities. 
 
 Treasurer may bring suit for recovery of taxes 
 unpaid. 
 
 § 18. The treasurer of the commonwealth shall, within six 
 months after the same shall be due and payable, bring suit 
 in his own name for the recovery of all taxes remaining un- 
 paid, and shall also bring such suit when the judge of a 
 probate court shall certify to him that a final account of 
 anj r executor, administrator or trustee has been filed in said 
 court, and that the final settlement of such estate is delayed 
 by reason of the nonpayment of such tax, and such certifi- 
 cate shall issue upon the application of any heir, legatee, or 
 any person in interest; provided, however, that the probate 
 court may extend the time when any tax shall be due and 
 payable whenever the circumstances of the case may require. 
 
 Approved June 11, 1891. 
 
 (b) Chapter 432, Laws 1893. 
 
 r An act relating to the collection of taxes on collateral lega- 
 cies and successions. 
 
 Be it enacted, etc., as follows: 
 
 § 1. The treasurer and receiver general is authorized to 
 expend a sum not exceeding one thousand dollars annually 
 for extra clerical assistance in the assessment and collection 
 of taxes on collateral legacies and successions, under chap- 
 ter four hundred and twenty-five of the Acts of the Year 
 Eighteen Hundred and Ninety One; and he may, if he deems
 
 MaSS., IV. C.] APPENDIX OF STATUTES. * 483 
 
 it best so to do, assign such portions of the work as can be 
 performed by that officer without detriment to the public 
 service, to the deputy scaler of weights and measures, to 
 whom such compensation, in addition to his salary of deputy 
 sealer of weights and measures, as the treasurer and receiver 
 general may deem proper, may be paid from the amount 
 herein authorized to be expended. 
 
 Approved June 9, 1893. 
 
 (c) Laws 1895, Ch. 307. 
 
 !Aji act relative to taxes on collateral legacies and succes- 
 sions. 
 
 Be it enacted, etc., as follows : 
 
 § 1. No bequest of a testator whose estate is subject to 
 taxation under the provisions of chapter four hundred and 
 twenty-five of the Acts of the Year 1891 shall be subject 
 to the provisions of said chapter unless the value of such 
 bequest exceeds the sum of $500, nor shall bequests to 
 towns, for any public purpose, be subject to a tax under the 
 provisions of said chapter. 
 
 § 2. This act shall take effect upon its passage. 
 
 Approved April 25, 1895.
 
 484 APPENDIX OF statutes. [Me., V. a. 
 
 V. MAINE. 
 
 (a) Laws 1893, Ch. 146, as Amended by Chapters 96 and 
 124, Laws 1895. 
 
 An act to tax collateral inheritances. 
 
 Be it enacted by the senate and house of representatives in 
 legislature assembled, as follows: 
 
 § 1. All property within the jurisdiction of this state, and 
 any interest therein, whether belonging to inhabitants of 
 this state or not, and whether tangible or intangible, which 
 shall pass by will or by the intestate laws of the state, or 
 by deed, grant, sale, or gift made or intended to take effect 
 in possession or enjoyment after the death of the grantor, to 
 any person in trust or otherwise, other than to or for the use 
 of the father, mother, husband, wife, lineal descendant, 
 adopted child, the lineal descendant of any adopted child, 
 the wife or widow of a son, or the husband of the daughter 
 of a decedent, or any educational, charitable, or benevolent 
 institution in this state [as amended by chapter 96, Laws 
 Me. 1895], shall be liable to a tax of two and a half per cent, 
 of its value, above the sum of five hundred dollars, for the 
 use of the state, and all administrators, executors, and trus- 
 tees, and any such grantee under a conveyance made during 
 the grantor's life shall be liable for all such taxes, with law- 
 ful interest, as hereinafter provided, until the same shall 
 have been paid as hereinafter directed. 
 
 § 2. When any person shall bequeath or devise any prop- 
 erty to or for the use of father, mother, husband, wife, lineal 
 descendant, an adopted child, the lineal descendant of any 
 adopted child, the wife or widow of a son, or the husband of 
 a daughter during life or for a term of years, and the re- 
 mainder to a collateral heir, or to a stranger to the blood 
 other than an educational, charitable or benevolent institu- 
 tion in this state the value of the prior estate shall, within 
 three months after the appointment of the executor, be ap- 
 praised in the manner hereinafter provided, and deducted, 
 together with the sum of five hundred dollars, from the ap- 
 praised value of such property, and said tax on the remain- 
 der shall be payable within one year from the death of said 
 testator, or within such further time as the judge of the 
 probate may allow [Id.], and, together with any interest
 
 Me., V. a. J appendix of statutes. 485 
 
 that may accrue on the same, be and remain a lien on said 
 property till paid to the state. 
 
 § 3. Whenever a decedent appoints one or more executors 
 or trustees, and in lieu of their allowance makes a bequest 
 or devise of property to them, which would otherwise be 
 liable to said tax, or appoints them his residuary legatees, 
 and said bequests, devises or residuary legacies exceed what 
 w r ould be a reasonable compensation for their services, such 
 excess shall be liable to such tax, and the court of probate 
 having jurisdiction of their accounts shall determine what 
 shall be such reasonable compensation. 
 
 § 4. All taxes imposed by this act shall be payable to the 
 treasurer of state by the executors, administrators or trus- 
 tees within 30 days from the date of the decrees determining 
 the amount thereof, and if the same are not so paid, interest 
 at the rate of nine per cent, shall be charged them and col- 
 lected from the time said tax became due. 
 
 § 5. Any administrator, executor, or trustee, having in 
 charge or trust any property subject to such tax, shall de- 
 duct the tax therefrom, or shall collect the tax thereon and 
 interest chargeable under this act, from the legatee or per- 
 son entitled to said property, and he shall not deliver any 
 specific legacy or property subject to said tax to any person 
 until he has collected the tax thereon. 
 
 § 6. Whenever any legacies subject to said tax shall be 
 charged upon or payable out of any real estate, the heir or 
 devisee, before paying the same, shall deduct said tax there- 
 from and pay it to the executor, administrator, or trustee, 
 and the same shall remain a charge upon said real estate 
 until it is paid; and payment thereof shall be enforced by 
 the executor, administrator, or trustee, in the same manner 
 as the payment of the legacy itself could be enforced. 
 
 § 7. If any such legacy be given in money to any person 
 for a limited period, such administrator, executor, or trustee 
 shall retain the tax on the whole amount; but if it be not in 
 money, he shall make an application to the judge of probate 
 having jurisdiction of his accounts to make an apportion- 
 ment, if the case require it, of the sum to be paid into his 
 hands by such legatee on account of said tax and for such 
 further order as the case may require. 
 
 § 8. All administrators, executors and trustees shall have 
 power to sell so much of the estate of the deceased as will 
 enable them to pay said tax in the same manner as they 
 may be empowered to do for the payment of his debts. 
 
 § 9. A copy of the inventory of every estate, any part of
 
 486 APPENDIX OF statutes. [Me. , V. a. 
 
 "which may be subject to a tax under the provisions of this 
 act, or if the same can be conveniently separated, then a 
 copy of such part of such inventory, with the appraisal 
 thereof, shall be sent by mail by the register or the judge of 
 the court of probate in which such inventory is filed, to the 
 state assessors within ten days after the same is filed. The 
 fees for such copy shall be paid by the executor, administra- 
 tor, or trustee, and allowed in his account. 
 
 § 10. Whenever any of the real estate of a decedent shall 
 so pass to another person as to become subject to said tax, 
 the executor, administrator, or trustee of the decedent shall 
 inform the state assessors thereof within six months after 
 he has assumed the duties of his trust, or if the fact is not 
 known to him within that time, then within one month after 
 it does become so known to him. 
 
 § 11. Whenever for any reason the devisee, the legatee or 
 heir who has paid any such tax shall refund any portion of 
 the property on which it was paid, or it shall be judicially 
 determined that the whole or any part of such tax ought 
 not to have been paid, said tax, or the due proportional part 
 of said tax, shall be paid back to him by the executor, ad- 
 ministrator, or trustee. 
 
 § 12. The value of such property as may be subject to said 
 tax shall be its actual market value as found by the judge 
 of probate after public notice or personal notice to the state 
 assessors and all persons interested in the succession to said 
 property, or the state assessors or any of said persons inter- 
 ested may apply to the judge of probate having jurisdiction 
 of the estate, and on such application the judge shall ap- 
 point three disinterested persons, who, being first sworn, 
 shall view and appraise such property at its actual market 
 value for the purposes of said tax, and shall make return 
 thereof to said probate court, which return may be accepted 
 by said court in the same manner as the original inventory 
 of such estate is accepted, and if so accepted it shall be bind- 
 ing upon the person by whom this tax is to be paid and upon 
 the state. And the fees of the appraisers shall be fixed by 
 the judge of probate and paid by the executor, administra- 
 tor or trustee. In case of an annuity or life estate the 
 value thereof shall be determined by the so-called actuaries' 
 combined experience tables and five per cent, compound in- 
 terest. [As amended by chapter 96, Laws 1895, § 6.] 
 
 § 13. The court of probate, having either principal or an- 
 cillary jurisdiction of the settlement of the estate of the de- 
 cedent, shall have jurisdiction to hear and determine all
 
 Me. , V. a.] appendix of statutes. 487 
 
 questions in relation to said tax that may arise affecting any 
 devise, legacy or inheritance under this act, subject to ap- 
 peal as in other cases, and the county attorney of the county 
 where the hearing is had, shall represent the interests of the 
 slate in any such proceedings. The judge of probate hav- 
 ing jurisdiction as aforesaid, shall fix the time and place for 
 hearing and determining such questions, and shall give pub- 
 lic notice thereof and personal notice to the executor, admin- 
 istrator or trustee. Appeals on behalf of the estate shall 
 be taken in the name of the executor, administrator or trus- 
 tee, and service upon the county attorney of the county 
 where the hearing is had shall be sufficient. Where appeals 
 are taken by the state, service shall be made upon the exec- 
 utor, administrator or trustee. [As amended by Laws 1895, 
 c. 124.] 
 
 § 14. Every judge of probate shall, as often as once in six 
 months, render to the state assessors a statement of the 
 property within the jurisdiction of his court that has be- 
 come subject to said tax during such period, the name of 
 the testator, intestate or grantor, and the name of the bene- 
 ficiary whose estate is so taxable, and amount of such taxes 
 as will accrue during the next six months, so far as the same 
 can be determined from the probate records, and the num- 
 ber and amount of such taxes as are due and unpaid. [Re- 
 pealed by chapter 90. Laws 1895, § 7.] 
 
 § 15. The fees of judges or registers of probate for the du- 
 ties required of them by this act shall be, for each order, 
 appointment, decree, judgment, or approval of appraisal of 
 report required hereunder, fifty cents, and for copies of rec- 
 ords, the fees that are now allowed by law for the same. 
 And the administrators, executors, trustees, or other per- 
 sons paying said tax shall be entitled to deduct the amount 
 of all such fees paid to the judge or register of probate from 
 the amount of said tax to be paid to the treasurer of state. 
 
 § 16. No final settlement of the account of any executor, 
 administrator, or trustee shall be accepted or allowed by any 
 judge of probate unless it shall show, on oath or the affirma- 
 tion of the accountant, and the judge of said court shall find, 
 that all taxes, imposed by the provisions of this act, upon 
 any property or interest therein, belonging to the estate to 
 be settled by said account, shall have been paid, and the 
 receipt of the treasurer of state for such tax shall be the 
 proper voucher for such payment. 
 
 § 17. In the foregoing sections relating to collateral in- 
 heritances the word "person" shall be construed to include
 
 488 APPENDIX OF statutes. [Me. , V. a. , b. 
 
 bodies corporate as well as natural persons; the word "prop- 
 erty" shall be construed to include both real and personal 
 estate and any form of interest therein whatsoever, includ- 
 ing annuities. 
 
 § 18. This act shall not apply to any case now pending in 
 the probate court, and shall take effect when approved. 
 
 Approved February 9. 
 
 (b) Chapter 96, Laws 1895, § 9. 
 
 § 9. After failure to pay such tax, as provided in said act, 
 such an administrator, executor or trustee is liable to the 
 state on his administration bond for such tax and interest, 
 and an action shall lie thereon without the authority of the 
 judge of probate; or an action of debt may be maintained 
 in the name of the state against any such administrator, 
 executor or trustee or any such grantee for such tax and in- 
 terest. But if such administrator, executor or trustee, after 
 being duly cited therefor, refuses or neglects to return his 
 inventory, or to settle an account, by reason whereof the 
 judge of probate cannot determine the amount of such tax, 
 such administrator, executor or trustee shall be liable to the 
 state on his administration bond for all damages occasioned 
 thereby.
 
 Ohio, VI. a.] appendix of statutes. 489 
 
 VI. OHIO. 
 
 (a) Laws 1893, P. 14, as Amended by Laws 1894, P. 169. 
 
 An act imposing a collateral-inheritance tax. 
 
 Passed January 27, 1893, and amended April 20, 1894. 
 
 Section 1. Be it enacted by the general assembly, &c, as 
 follows: 
 
 § 1. That all property within the jurisdiction of this state, 
 and any interest therein, whether belonging to inhabitants 
 of this state or not, and whether tangible or intangible, 
 which shall pass by will or by the intestate laws of this state, 
 or by deed, grant, sale or gift made or intended to take effect 
 in possession or enjojinent after the death of the grantor, 
 to any person in trust or otherwise, other than to or for the 
 use of the father, mother, husband, wife, brother, sister, 
 niece, nephew, lineal descendant, adopted child, or person 
 recognized as an adopted child and made a legal heir under 
 the provisions of section 4182 of the Revised Statutes of 
 Ohio, or the lineal descendant thereof, or the lineal descend- 
 ant of any adopted child, the wife or widow of a son, the hus- 
 band of the daughter of a decedent, shall be liable to a tax 
 of five per centum of its value, above the sum of two hun- 
 dred dollars, seventy-five per centum of such tax to be for the 
 use of the state, and twenty-five per centum for the use of 
 the county wherein the same is collected; and all adminis- 
 trators, executors and trustees, and any such grantee under a 
 conveyance made during the grantor's life, shall be liable for 
 all such taxes, with lawful interest as hereinafter provided, 
 until the same shall have been paid as hereinafter directed. 
 Such taxes shall become due and payable immediately upon 
 the death of the decedent, and shall at once become a lien 
 upon said property, and be and remain a lien until paid. 
 {As amended April 20, 1894.] 
 
 § 2. When any person shall bequeath or devise any prop- 
 erty to or for the use of father, mother, husband, wife, 
 brother, sister, niece, nephew, lineal descendant and adopted 
 child, the lineal descendant of any adopted child, the wife 
 or widow of a son, or the husband of a daughter, during 
 life or for a term of years, and the remainder to a collateral 
 heir, or to a stranger to the blood, the value of the prior 
 estate shall, within sixty days after the death of the tes-
 
 490 appendix of statutes. [Ohio, VI. a. 
 
 tator, be appraised in the manner hereinafter provided, 
 and deducted, together with the sum of two hundred dollars, 
 from the appraised value of such property. [As amended 
 April 20, 181)4.] 
 
 § 3. Whenever a decedent appoints one or more executors 
 or trustees, and in lieu of their allowance makes a bequest 
 or devise of property to them which would otherwise be 
 liable to said tax, or appoints them his residuary legatees, 
 and said bequests, devises, or residuary legacies exceed what 
 would be a reasonable compensation for their services, such 
 excess shall be liable to such tax, and the court of probate 
 having jurisdiction of their accounts shall fix such compen- 
 sation. 
 
 § 4. All taxes imposed by this act shall be paid into the 
 county treasury of the county in which the court having ju- 
 risdiction of the estate or accounts is situated by the exec- 
 utors, administrators or trustees, or other persons charged 
 with the payment thereof, and if said taxes are not paid 
 within one year after the death of said decedent, interest at 
 the rate of eight per centum shall be thereafter charged 
 and collected thereon, and if said taxes are not paid at the 
 expiration of eighteen months after the death of said dece- 
 dent, it shall be the duty of the prosecuting attorney of the 
 county wherein said taxes remain unpaid, to institute the 
 necessary proceedings to collect the same in the court of 
 common pleas of such county, after first being duly notified 
 in writing by the probate judge of said county of the non- 
 payment of such taxes, and it is hereby made the duty of 
 the probate judge to give such notice in writing; but if said 
 taxes are paid before the expiration of one year after the 
 death of said decedent, a discount at the rate of one per 
 centum per month for each full month that payment shall 
 have been made prior to the expiration of said year, shall 
 be allowed on the amount of taxes found to be due under the 
 provisions of this act. [As amended April 20, 1894.] 
 
 § 5. Any administrator, executor, or trustee, having in 
 charge or trust any property subject to such tax, shall de- 
 duct the tax therefrom, or shall collect the tax thereon from 
 the legatee or person entitled to said property, and he shall 
 not deliver any specific legacy or property subject to said tax 
 to any person until he has collected the tax thereon. 
 
 § 6. Whenever any legacies subject to said tax shall be 
 charged upon or payable out of any real estate, the heir or 
 devisee, before paying the same, shall deduct said tax there- 
 from and pay it to the executor, administrator, or trustee.
 
 Ohio, VI. a ] appendix of statutes. 491 
 
 and the same shall remain a charge upon said real estate 
 until it is paid; and payment thereof shall be enforced by 
 the executor, administrator, or trustee, in the same manner 
 as the payment of the legacy itself could be enforced. 
 
 § 7. If any such legacy be given in money to any person for 
 a limited period, such administrator, executor or trustee 
 shall retain the tax on the whole amount; but if it be not in 
 money, he shall make an application to the court having 
 jurisdiction of his accounts to make an apportionment, if the 
 case require it, of the sum to be paid into his hands by such 
 legatee on account of said tax and for such further order as 
 the case may require. 
 
 § 8. All administrators, executors and trustees shall have 
 power to sell so much of the estate of the deceased as will 
 enable them to pay said tax in the same manner as they may 
 be empowered to do for the payment of his debts. 
 
 § 9. Within ten days after the filing of the inventory of 
 every such estate, any part of which may be subject to a 
 tax under the provisions of this act, the judge or the court of 
 probate in which such inventory is filed, shall make and de- 
 liver to the county auditor of any such county, a copy of such 
 inventory; or, if the same can be conveniently separated, a 
 copy of such part of such estate, with the appraisal thereof; 
 the county auditor shall certify the value of said estate, sub- 
 ject to taxation hereunder and the amount of taxes due 
 therefrom, to the county treasurer, who shall collect such 
 taxes, and thereupon place twenty-five per centum thereof to 
 the credit of the county expense fund of said county, and pay 
 seventy-five per centum thereof into the state treasury, to 
 the credit of the general revenue fund, at the time of making 
 his semi-annual settlement. [As amended April 20, 1894.] 
 
 § 10. Whenever any of the real estate of a decedent shall 
 so pass to another person as to become subject to said tax, 
 the executor, administrator or trustee of the decedent shall 
 inform the probate judge thereof within six months after he 
 has assumed the duties of his trust, or if the fact is not 
 known to him within that time, then within one month from 
 the time that it does become so known to him. 
 
 § 11. Whenever for any reason the devisee, legatee or heir 
 who has paid any such tax shall refund any portion of the 
 property on which it was paid, or it shall be judicially de- 
 termined that the whole or any [part of] such tax ought not 
 to have been paid, said tax, or the due proportional part of 
 said tax, shall be paid back to him by the executor, adminis- 
 trator or trustee.
 
 492 appendix of statutes. [Ohio, VI. a. 
 
 § 12. The value of such property as may be subject to said 
 tax shall be its actual market value as found by the court 
 of probate; but the state, through the prosecuting attorney 
 of the proper count}', or any person interested in the succes- 
 sion to said property, may apply to the court of probate hav- 
 ing jurisdiction of the estate; and on such application the 
 court shall appoint three disinterested persons, who, being 
 first sworn, shall view and appraise such property at its 
 actual market value for the purposes of said tax, and shall 
 make return thereof to said court, which return may be 
 accepted by said court in the same manner as the original 
 inventory of such estate is accepted, and if so accepted it 
 shall be binding upon the person by whom this tax is to be 
 paid, and upon the state. The fees of the appraisers shall 
 be fixed by the judge of probate and paid out of the county 
 treasury upon the warrant of the county auditor. In case 
 of an annuity or life estate, the value thereof shall be de- 
 termined by the so-called actuaries' combined experience 
 tables and five per centum compound interest. 
 
 § 13. The court of probate having either principal or 
 auxiliary jurisdiction of the settlement of the estate of the 
 decedent, shall have jurisdiction to hear and determine all 
 questions in relation to said tax that may arise, affecting 
 any devise, legacy or inheritance under this act, subject to 
 appeal as in other cases, and the prosecuting attorney shall 
 represent the interests of the state in any such proceedings. 
 
 § 14. The judge of each probate court shall, as often as 
 once in six months, render to the county auditor a statement 
 of the property within the jurisdiction of his court that has 
 become subject to said tax during such period, the number 
 and amount of such taxes as will accrue during the next six 
 months, so far as the same can be determined from the pro- 
 bate records, and the number and amount of such taxes 
 as are due and unpaid; and each probate judge shall keep a 
 separate record, in a book to be provided for that purpose, of 
 all cases arising under the provisions of this act. [As 
 amended April 20, 1894.] 
 
 § 15. The fees of all officers having duties to perform un- 
 der the provisions of this act, shall be paid by the county 
 from the county expense fund thereof, and shall be the same 
 as now allowed by law for similar services; in the calcula- 
 tion of amounts due the state, seventy-five per centum of 
 the cost of collection and other necessary and legitimate ex- 
 penses incurred by the county in the collection of such taxes, 
 shall be charged to the state and deducted from the amount
 
 Ohio, VI. a., b.] appendix of statutes. 493 
 
 of taxes to be paid into the state treasury. [As amended 
 April 20, 1894] 
 
 j L6. Xo final settlement of the account of any executor, 
 administrator or trustee shall be accepted or allowed by the 
 court of probate unless it shall show, and the judge of said 
 court shall find, that all taxes imposed by the provisions of 
 this act upon any property or interest therein, belonging to 
 the estate to be settled by said account, shall have been paid; 
 and the receipt of the county treasurer shall be the proper 
 voucher for such payment. 
 
 § 17. In the foregoing act the word "person" shall be con- 
 strued to include the plural as well as the singular, and 
 artificial as well as natural persons; the word "property" 
 shall be construed to include both real and personal estate, 
 and any form of interest therein whatsoever, including an- 
 nuities. 
 
 § 18. This act shall take effect and be in force from and 
 after its passage. 
 
 (b) Laws 1894, P. 166. 
 
 An act to impose a direct-inheritance tax. 
 Passed April 20, 1S94. 
 
 § 1. Be it enacted by the general assembly of the state of 
 Ohio, that all property within the jurisdiction of this state, 
 and any interest therein, whether belonging to inhabitants 
 of this state or not, and whether tangible or intangible, in- 
 cluding annuities, which shall pass by will or by the in- 
 testate laws of this state, or by deed, grant, sale, or gift made 
 or intended to take effect in possession or enjoyment after 
 the death of the grantor, to the use of the father, mother, 
 husband, wife, brother, sister, niece, nephew, lineal descend- 
 ant, adopted child, or person recognized as an adopted child 
 and made a legal heir under the provisions of section 4182 
 of the Revised Statutes of Ohio, or the lineal descendant 
 thereof, the lineal descendant of any adopted child, the wife 
 or widow of a son, the husband of a daughter of decedent, 
 or to any one in trust for such person or persons, shall be 
 liable to a tax as follows, to wit: When the value of the 
 entire property of such decedent exceeds the sum of twenty 
 thousand dollars and does not exceed the sum of fifty thou- 
 sand dollars, one per cent; when it exceeds fifty thousand 
 dollars and does not exceed one hundred thousand dollars, 
 one and one-half per cent; when it exceeds one hundred thou-
 
 494 APrENDix of statutes. [Ohio, VI. b. 
 
 sand dollars and does not exceed two hundred thousand dol- 
 lars, two per cent.; when it exceeds two hundred thousand 
 dollars and does not exceed three hundred thousand dollars, 
 three per cent.; when it exceeds three hundred thousand 
 dollars and does not exceed five hundred thousand dollars, 
 three and one-half per cent.; when it exceeds five hundred 
 thousand dollars and does not exceed one million dollars, 
 four per cent; and when it exceeds one million dollars, five 
 per cent. ; seventy-five per cent of such tax to be for the use 
 of the state, and twenty-five per cent, for the use of the 
 county wherein the same is collected; and all administrators, 
 executors and trustees, shall be liable for all such taxes, 
 with lawful interest, as hereinafter provided, until the same 
 shall have been paid as hereinafter directed. Such taxes shall 
 become due and payable immediately upon the death of the 
 decedent, and shall at once become a lien upon said property. 
 
 § 2. All taxes imposed by this act shall be paid into the 
 county treasury of the county in which the court having 
 jurisdiction of the estate or accounts is situated, by the ex- 
 ecutors, administrators or trustees, or other persons char- 
 ged with the payment thereof, and if said taxes are not 
 paid within one year after the death of said decedent, in- 
 terest at the rate of eight per centum shall be thereafter 
 charged and collected thereon; and if said taxes are not 
 paid at the expiration of eighteen months after the death 
 of said decedent, it shall be the duty of the prosecuting 
 attorney of the county wherein said taxes remain unpaid, 
 to institute the necessary proceedings to collect the same 
 in the court of common pleas of such county, after first 
 being duly notified in writing by the probate judge of said 
 county of the non-payment of such taxes, and it is hereby 
 made the duty of the probate judge to give such notice in 
 writing; but if said taxes are paid before the expiration 
 of one year after the death of said decedent, a discount at 
 the rate of one per cent, per month for each full month 
 that payment shall have been made prior to the expira- 
 tion of said year, shall be allowed on the amount of taxes 
 found to be due under the provisions of this act. 
 
 § 3. Any administrator, executor or trustee having in 
 charge or trust any property subject to such tax, shall de- 
 duct the tax therefrom, or shall collect the tax thereon 
 from the legatee or person entitled to said property, and 
 he shall not deliver any specific legacy or property, subject 
 to said tax, to any person until he has collected the tax 
 thereon.
 
 Ohio, VI. b.] APPENDIX OF STATUTES. 495 
 
 § 4. Whenever any legacies subject to said tax shall be 
 charged upon or payable out of any real estate, the hei/ 
 or devisee, before paving the same, shall deduct said 1ax 
 therefrom and pay it to the executor, administrator or trus- 
 tee, and the same shall remain a lien upon said real estate 
 until it is paid; and payment thereof shall be enforced 
 by the executor, administrator or trustee, in the same 
 manner as the payment of the legacy itself could be en- 
 forced. 
 
 § 5. All administrators, executors and trustees shall have 
 power to sell so much of the estate of the deceased as will 
 enable them to pay said tax, in the same manner as they 
 may be empowered to do for the payment of his debts. 
 
 § 6. Within ten days after the filing of the inventory of 
 every estate subject to a tax under the provisions of this act, 
 the judge or the court of probate in which such inventory 
 is filed, shall make and deliver to the county auditor of 
 any such county, a copy of such inventory, with the ap- 
 praisal of said estate; the county auditor shall certify the 
 value of said estate and the amount of taxes due therefrom 
 to the county treasurer, who shall collect such taxes and 
 thereupon place twenty-five per cent, thereof to the credit 
 of the county expense fund of said county, and pay sev- 
 enty-five per cent thereof into the state treasury, to the 
 credit of the general revenue fund, at the time of making 
 his semi-annual settlement. 
 
 § 7. Whenever any of the real estate of a decedent shall 
 so pass to another person as to become subject to said tax, 
 the executor, administrator or trustee of the decedent shall 
 inform the probate judge thereof within six months after he 
 has assumed the duties of his trust, or if the fact is not 
 known to him within that time, then within one month 
 from the time that it does become so known to him. 
 
 § 8. Whenever for any reason the devisee, legatee or heir 
 who has paid any such tax shall refund any portion of the 
 property on which it was paid, or it shall be judicially de- 
 termined that the whole or any part of such tax ought not 
 to have been paid, said tax, or the due proportional part of 
 said tax, shall be paid back to him by the executor, admin- 
 istrator or trustee. 
 
 § 9. The value of such property as may be subject to said 
 tax shall be its actual market value as found by the court 
 of probate; but the state, through the prosecuting attor- 
 ney of the. proper county, or any person interested in the 
 succession of [to] said property, may apply to the court of
 
 496 APPENDIX OF STATUTES. [Ohio, VI. b- 
 
 probate having jurisdiction of the estate; and on such ap- 
 plication the court shall appoint three disinterested per- 
 sons, who, being first sworn, shall view and appraise such 
 property at its actual market value for the purposes of said 
 tax, and shall make return thereof to said court, which re- 
 turn may be accepted by said court in the same manner 
 as the original inventory of such estate is accepted, and if 
 so accepted it shall be binding upon the person by whom 
 this tax is to be paid, and upon the state. The fees of 
 the appraisers shall be fixed by the judge of probate and 
 paid out of the county treasury upon the warrant of the 
 county auditor. In case of an annuity or life estate, the 
 value thereof shall be determined by the so-called actuaries' 
 combined experience tables and five per centum compound 
 interest. 
 
 § 10. The court of probate, having either principal or 
 auxiliary jurisdiction of the settlement of the estate of the 
 decedent, shall have jurisdiction to hear and determine 
 all questions in relation to said tax that may arise, affect- 
 ing any devise, legacy or inheritance under this act, sub- 
 ject to appeal as in other cases, and the prosecuting attor- 
 ney shall represent the interests of the state in any such 
 proceedings. 
 
 § 11. The judge of each probate court shall, as often as 
 once in six months, render to the county auditor a state- 
 ment of the property within the jurisdiction of his court 
 that has become subject to said tax during such period, 
 the number and amount of such taxes as will accrue during 
 the next six months, so far as the same can be determined 
 from the probate records, and the number and amount of 
 such taxes as are due and. unpaid, and each probate judge 
 shall keep a separate record, in a book to be provided for 
 that purpose, of all cases and proceedings arising under 
 the provisions of this act. 
 
 § 12. The fees of all officers having duties to perform 
 under the provisions of this act, shall be paid by the county 
 from the county expense fund thereof, and shall be the same 
 as now allowed by law for similar services. In the calcu- 
 lation of amounts due the state, seventy-five per cent, 
 of the cost of collection, and other necessary and legitimate 
 expenses incurred by the county in the collection of such 
 taxes, shall be charged to the state and deducted from the 
 amount of taxes to be paid into the state treasury. 
 
 § 13. No final settlement of the account of any executor, 
 administrator or trustee shall be accepted or allowed by
 
 Ohio, VI. b.] APPENDIX OF STATUTES. 497 
 
 the court of probate unless it shall show, and the judge of 
 said court shall find, that all taxes imposed by the provi- 
 sions of this act upon any property or interest therein be- 
 longing to the estate to be settled by said account shall 
 have been paid; and the receipt of the county treasurer 
 shall be the proper voucher for such payment, 
 
 § 14. This act shall take effect on its passage- 
 State of Ohio, Office of the Secretary of State: 
 
 I, Samuel M. Taylor, secretary of state of the state of 
 Ohio, hereby certify that the foregoing are correct copies of 
 the laws imposing taxes on collateral and direct inherit- 
 ances, passed January 27, 1893, and April 20, 1894, and 
 that the same are in full force and effect as general laws 
 of this state. 
 
 [Seal.] Samuel M. Taylor, Secretary of State. 
 
 LAW INHER. 32
 
 498 APPENDIX OF STATUTES. [Conn. , VII. a. 
 
 VII. CONNECTICUT. 
 
 (a) Laws 1889, P. 106, Ch. CLXXX. 
 An act imposing a collateral inheritance tax. 
 
 Be it enacted by the senate and house of representatives in 
 general assembly convened: 
 
 Collateral inheritance tax imposed. 
 
 § 1. All property within the jurisdiction of this state, and 
 any interest therein, whether belonging to inhabitants of 
 this state or not, and whether tangible or intangible, which 
 shall pass by will or by the intestate laws of this state, or 
 by deed, grant, sale or gift, made or intended to take effect 
 in possession or enjoyment after the death of the grantor, to 
 any person in trust or otherwise, other than to or for the 
 use of the father, mother, husband, wife, lineal descendant, 
 adopted child, the lineal descendant of any adopted child, 
 the wife or widow of a son, the husband of the daughter of a 
 decedent, or some charitable purpose, or purpose strictly 
 public within this state, shall be liable to a tax of five per 
 centum of its value, above the sum of one thousand dollars, 
 for the use of the state, and all administrators, executors and 
 trustees, and any such grantee under a conveyance made 
 during the grantor's life, shall be liable for all such taxes, 
 with lawful interest as hereinafter provided, until the same 
 shall have been paid as hereinafter directed. [Brothers and 
 sisters of decedent are now exempt. Chapter 257, Laws 
 1893, p. 406.] 
 
 Tax on remainderman, how ascertained. 
 
 § 2. When any person shall bequeath or devise any prop- 
 erty to or for the use of father, mother, husband, wife, lineal 
 descendant, an adopted child, the lineal descendant of any 
 adopted child, the wife or widow of a son, or the husband 
 of a daughter, during life or for a term of years, and the re- 
 mainder to a collateral heir or to a stranger to the blood, 
 the value of the prior estate shall, within sixty days after 
 the death of the testator, be appraised in the manner here- 
 inafter provided, and deducted, together with the sum of 
 one thousand dollars, from the appraised value of such prop-
 
 Conn., VII. a.] appendix of statutes. 499 
 
 ertj, and the tax on the remainder shall be payable one year 
 from the death of said testator, and together with any inter- 
 est that may accrue on the same, be and remain a lien on 
 said property till paid to the state. 
 
 On legacy to executor or trustee. 
 
 § 3. Whenever a decedent appoints one or more executors 
 or trustees, and in lieu of their allowance makes a bequest 
 or devise of property to them which would otherwise be 
 liable to said tax, or appoints them his residuary legatees, 
 and said bequests, devises or residuary legacies exceed 
 what would be a reasonable compensation for their services, 
 such excess shall be liable to such tax, and the court of pro- 
 bate having jurisdiction of their accounts shall fix such 
 compensation. 
 
 Tax, when payable. 
 
 § 4. All taxes imposed by this act shall be payable to the 
 treasurer of the state by the executors, administrators or 
 trustees, one year from the death of said testator, or intes- 
 tate, or the qualification of said trustee; and if the same are 
 not so paid, interest at the rate of nine per centum shall be 
 charged them and collected from the time said tax became 
 due. 
 
 Administrator to collect or retain tax. 
 
 § 5. Any administrator, executor or trustee having in 
 charge or trust any property subject to said tax, shall deduct 
 the tax therefrom, or shall collect the tax thereon from the 
 legatee or person entitled to said property, and he shall not 
 deliver any specific legacy or property subject to said tax 
 to any person until he has collected the tax thereon. 
 
 Tax on legacy charge on real estate. 
 
 § 6. Whenever any legacies subject to said tax shall be 
 charged upon or payable out of any real estate, the heir or 
 devisee, before paying the same, shall deduct said tax there- 
 from and pay it to the executor, administrator or trustee, 
 and the same shall remain a charge upon said real estate 
 until it is paid; and payment thereof shall be enforced by 
 the executor, administrator or trustee, in the same manner 
 as the payment of the legacy itself could be enforced.
 
 500 appendix of statutes. [Conn. , VII. a. 
 
 Tax on estate for years. 
 
 § 7. If any such, legacy be given in money to any person 
 for a limited period, such administrator, executor or trustee, 
 shall retain the tax on the whole amount; but if it be not 
 in money, he shall make an application to the court having 
 jurisdiction of his accounts to make an apportionment, if 
 the case require it, of the sum to be paid into his hands by 
 such legatee on account of said tax, and for such further or- 
 der as the case may require. 
 
 Sale of estate to pay tax. 
 
 § 8. All administrators, executors and trustees shall have 
 power to sell so much of the estate of the deceased as will 
 enable them to pay said tax in the same manner as they 
 may be empowered to do for the payment of his debts. 
 
 Inventory of estate subject to tax to be sent state 
 treasurer. 
 
 § 9. A copy of the inventory of every estate, any part of 
 which may be subject to a tax under the provisions of this 
 act, or if the same can be conveniently separated, then a 
 copy of such part of such estate, with the appraisal thereof, 
 shall be sent by mail, by the clerk or the judge of the court 
 of probate in which such inventory is filed, to the treasurer 
 of the state within ten days after the same is filed. The 
 fees for such copy shall be paid by the executor, administra- 
 tor or trustee. 
 
 Duty of executor, &c, as to real estate becoming 
 subject to tax. 
 
 § 10. Whenever any of the real estate of a decedent shall 
 so pass to another person, as to become subject to said tax, 
 the executor, administrator or trustee of the decedent shall 
 inform the state treasurer thereof within six months after 
 he has assumed the duties of his trust, or if the fact is not 
 known to him within that time, then within one month from 
 the time that it does become so known to him. 
 
 Refunding over-paid tax. 
 
 § 11. Whenever, for any reason, the devisee, legatee or 
 heir who has paid any such tax shall refund any portion of 
 the property on which it was paid, or it shall be judicially
 
 Conn., VII. a. J appendix of statutes. 501 
 
 determined that the whole or any part of such tax ought not 
 to have been paid, said tax, or the due proportional part of 
 said tax, shall be paid back to him by the executor, adminis- 
 trator or trustee. 
 
 Value of property, how ascertained. 
 
 § 12. The value of such property as may be subject to said 
 tax shall be its actual value as found by the court of probate, 
 but the state treasurer, or any person interested in the suc- 
 cession to said property, may apply to the court of probate 
 having jurisdiction of the estate, and on such application 
 said court shall appoint three disinterested persons who, be- 
 ing first sworn, shall view and appraise such property at its 
 actual market value, for the purposes of said tax, and shall 
 make return thereof to said court, which return may be ac- 
 cepted by said court in the same manner as the original in- 
 ventory of such estate is accepted, and if so accepted it 
 shall be binding upon the person by whom this tax is to be 
 paid, and by the state. And the fees of the appraiser shall 
 be fixed by the judge of probate and paid by the executor, 
 administrator or trustee. In case of an annuity or life es- 
 tate the value thereof shall be determined by the so-called 
 actuaries' combined experience tables and five per centum 
 compound interest 
 
 Jurisdiction of probate court as to questions rel- 
 ative to tax. 
 
 § 13. The court of probate having either principal or an- 
 cillary jurisdiction of the settlement of the estate of the de- 
 cedent, shall have jurisdiction to hear and determine all 
 questions in relation to said tax that may arise affecting any 
 devise, legacy or inheritance under this act subject to appeal 
 as in other cases, and the state treasurer shall represent the 
 interests of the state in any such proceedings. 
 
 Statements to be rendered the treasurer by pro- 
 bate judges. 
 
 § 14. The judge of each probate district shall, as often as 
 once in six months, render to the state treasurer a state- 
 ment of the property within the jurisdiction of his court that 
 has become subject to such tax during such period, the num- 
 ber and amount of such taxes as will accrue during the next 
 six months, so far as the same can be ascertained from the
 
 502 appendix of statutes. [Conn. , VII. a. 
 
 probate records, and the number and amount of such, taxes 
 as are due and unpaid. 
 
 Probate fees. 
 
 § 15. The fees of courts of probate for the duties required 
 of them by this act shall be for each order, appointment, de- 
 cree, judgment or approval of inventory or report required 
 hereunder, one dollar; for the filing and endorsement of each 
 paper, and for copies of records, the fees that are now al- 
 lowed by law for the same. And the administrators, exec- 
 utors, trustees or other persons paying said tax shall be en- 
 titled to deduct the amount of all such fees paid to the court 
 of probate from the amount of said tax to be paid to the 
 treasurer of the state. 
 
 Final settlement of estate not to be allowed until. 
 
 § 16. No final settlement of the account of any executor, 
 administrator or trustee, shall be accepted or allowed by any 
 court of probate unless it shall show, and the judge of said 
 court shall find, that all taxes imposed by the provisions of 
 this act, upon any property or interest therein belonging to 
 the estate to be settled by said account, shall have been 
 paid, and the receipt of the treasurer of the state for such 
 tax shall be the proper voucher for such payment. 
 
 Definitions. 
 
 § 17. In the foregoing act the word "person" shall be con- 
 strued to include the plural as well as the singular, and arti- 
 ficial as well as natural persons; the word "property" shall 
 be construed to include both real and personal estate, and 
 any forms of interest therein whatsoever, including annui- 
 ties; and the words "charitable purpose" shall be construed 
 to include gifts to any educational, benevolent, ecclesiastical 
 or missionary corporation, association or object. 
 
 Approved June 5, 1889.
 
 Md. , VIII, a.] appendix of statutes. 503 
 
 VIII. MARYLAND. 
 
 (a) Maryland Code, Vol. 2, 1888, P. 1242. 
 
 COLLATERAL INHERITANCE TAX. 1 
 
 § 102. All estates, real, personal and mixed, money, public 
 and private securities for money of every kind, passing from 
 any person who may die seized and possessed thereof, being 
 in this state, or any part of such estate or estates, money 
 or securities, or interest therein, transferred by deed, will, 
 grant, bargain, gift or sale, made or intended to take effect 
 in possession after the death of the grantor, bargainor, de- 
 visor or donor, to any person or persons, bodies politic or 
 corporate, in trust or otherwise, other than to or for the use 
 of the father, mother, husband, wife, children and lineal de- 
 scendants of the grantor, bargainor, testator, donor or in- 
 testate, shall be subject to a tax of two and a half per cent- 
 um on every hundred dollars of the clear value of such es- 
 tates, money or securities; and all executors and adminis- 
 trators shall only be discharged from liability for the amount 
 of such tax, the payment of which they may be charged with, 
 by paying the same for the use of this state, as hereinafter 
 directed; provided, that no estate which may be valued at 
 a less sum than five hundred dollars, shall be subject to the 
 tax imposed by this section. 2 
 
 § 103. Every executor or administrator, to whom adminis- 
 tration may be granted, before he pays any legacy, or dis- 
 tributes the shares of any estate liable to the tax imposed 
 by the preceding section, shall pay to the register of wills 
 of the proper county or city, two and a half per centum of 
 every hundred dollars he may hold for distribution among 
 the distributees or legatees, and at that rate for any less 
 sum, for the use of the state; this section shall not be con- 
 strued so as to release any tax already fixed on any collat- 
 eral inheritance, distributive share or legacy. 3 
 
 i Pub. Gen. Laws 1860, art. 81, § 124; Id. 1844, c. 237, § 1; Id. 1864, 
 C. 200; Id. 1874, c. 483, § 113; Id. 1S80, c. 444. 
 
 2 State v. Dorsey, 6 Gill, 388; Tyson v. State, 28 Md. 577; Citizens' 
 Nat. Bank v. Sharp. 53 Md. 521; Pub. Gen. Laws 1860, art. 81, § 
 125; Id. 1844, c. 237, § 2; Id. 18(54, c. 200; Id. 1874, c. 483, § 114. - 
 
 3 State v. Dorsey, 6 Gill. 3S8; Pub. Gen. Laws 1860, art. 81, § 126; 
 Id. 1S44, c. 237, § 2; Id. 1S74, c. 483, § 115.
 
 504 APPENDIX OF STATUTES. [Md. , VIII. f). 
 
 § 104. When any species of property other than money or 
 real estate shall be subject to said tax, the tax shall be paid 
 on the appraised value thereof as filed in the office of the 
 register of wills of the proper county or city; and every exec- 
 utor shall have power under the order of the orphans' court, 
 to sell, if necessary, so much of said property as will enable 
 him to pay said tax. 4 
 
 § 105. Every executor or administrator shall, within thir- 
 teen months from the date of his administration, pay said 
 tax on distributive shares and legacies in his hands, and on 
 failure to do so, he shall forfeit his commissions. 5 
 
 § 106. In all cases where real estate of any kind is subject 
 to the said tax, the orphans' court of the county in which 
 administration is granted shall appoint the same persons, 
 who may have been appointed to value the personal estate, 
 to appraise and value all the real estate of the deceased 
 within the state. 6 
 
 § 107. The form of the warrant to such appraisers shall be 
 the same as to appraisers of personal property, except that 
 the words "real estate" shall be inserted therein instead of 
 the words "goods, chattels and personal estate," and the 
 words "price of property" instead of the word "article," and 
 the appraisers shall take the oath prescribed for appraisers 
 of personal estate, except that the words "real estate" shall 
 be substituted for the words "goods, chattels and personal 
 estate," and their duties and proceedings shall, in every re- 
 spect, be the same as those of the appraisers of personal 
 estate. 7 ' 
 
 § 108. If the estate or property lies in more than one coun- 
 ty, and it is not convenient for the appraisers to visit the 
 other county, the court may appoint two appraisers in said 
 county. 8 
 
 § 109. The inventory of the real estate shall be entirely 
 separate and distinct from that of the personal estate. 9 
 
 4 Pub. Gen. Laws 1860, art. 81, §. 127; Id. 1845, c. 202, § 1; Id. 
 1874, c. 483, § 116. 
 
 s Pub. Gen. Laws 1860, art. 81, § 128; Id. 1847, c. 222, § 1; Id. 
 1874, c. 483, § 117. 
 
 s Pub. Gen. Laws 1860, art. 81, § 129; Id. 1847, c. 222, § 1; Id. 
 1874, c. 483, § 118. 
 
 i Pub. Gen. Laws 1860, art. 81, §' 130; Id. 1847, c. 222, § 1; Id. 
 1874, c. 483, § 119. 
 
 e Pub. Gen. Laws 1860, art. 81, § 131; Id. 1847, c. 222, § 1; Id. 1874, 
 c. 483, § 120. 
 
 o Pub. Gen. Laws 1860, art. 81, § 132; Id. 1847, c. 222, § 1; Id. 
 1874, c. 4S3, § 121.
 
 Md., VIII. a.] APPENDIX OF STATUTES. 505 
 
 § 110. On the death or refusal of any appraiser to act, the 
 court may appoint another in his place. 10 
 
 § 111. The appraisers shall return the inventory, when 
 completed, to the executor or administrator, whose duty it 
 shall be to return the same to the office of the register of 
 wills, to which the inventory of the personal estate is return- 
 able, and within the same time and under like penalty, and 
 shall make oath that said inventory or inventories is or are a 
 true and perfect inventory or inventories of all the real es- 
 tate of the deceased, within this state, that has come to his 
 knowledge, and that, should he thereafter discover any other 
 real estate belonging to the deceased, in this state, he will 
 return an additional inventory thereof. 11 
 
 § 112. The appraisement thus made shall be deemed and 
 taken to be the true value of the said real estate, upon which 
 the said tax shall be paid. 12 
 
 § 113. The amount of said tax shall be a lien on said real 
 estate from the death of the decedent, who shall have died 
 seized and possessed thereof, until the same shall be paid. 13 
 
 § 114. The executor or administrator shall collect the same 
 from the parties liable to pay said tax, or their legal repre- 
 sentatives, within thirteen months from the date of his ad- 
 ministration, and pay the same to the register of wills of the 
 county or city in which administration is granted; and if 
 the said parties shall neglect or fail to pay the same within 
 that time, the orphans' court of said county shall order the 
 executor or administrator to sell for cash so much of said 
 real estate as may be necessary to pay said tax and all the 
 expenses of said sale, including the commissions of the ex- 
 ecutor or administrator thereon; and after the report of 
 said sale, the ratification thereof and the payment of the 
 purchase money, the executor or administrator may execute 
 a valid deed of the estate sold and not before. 14 
 
 § 115. Whenever any estate, real, personal or mixed, of a 
 decedent, shall be subject to the tax mentioned in the thir- 
 
 io Pub. Gen. Laws 1S60, art. 81, § 133; Id. 1847, c. 222, § 3; Id. 
 1874, c. 483, § 122. 
 
 ii Pub. Gen. Laws 1860, art. 81, § 134; Id. 1847, c. 222 § 4; Id 
 1874, c. 483, § 123. 
 
 12 Pub. Gen. Laws 1800, art. 81, § 135; Id. 1844, c. 237, § 5; Id 
 
 1846, c. 344. § 2; Id. 1874, c. 483, § 124. 
 
 is Pub. Gen. Laws 1S60, art. 81, § 136; Id. 1847, c. 222, § 5; Id 
 1874. c. 483, § 125. 
 
 14 Pub. Gen. Laws 1860, art. 81, § 137; Id. 1S46, c. 344, § 1; Id. 
 
 1847, c. 222, § 6; Id. 1874, c. 4S3, § 126; Id. 1880, c. 455.
 
 506 APPENDIX OF STATUTES. [Md. , VIII. a. 
 
 teen preceding sections, and there be a life estate, or inter- 
 est for a term of years, or a contingent interest given to one 
 party, and the remainder or reversionary interest to another 
 party, the orphans 1 court of the county or city in which the 
 administration is granted, shall determine in its discretion, 
 and at such time as it shall think proper, what proportion 
 the party entitled to said life estate, or interest, for a term 
 of years, or contingent interest, shall pay of said tax; and 
 the judgment of said court shall be final and conclusive; and 
 the party entitled to said life estate, or interest for a term 
 of years, or other contingent interest, shall, within thirty 
 days after the date of such determination, pay to the regis- 
 ter of wills his proportion of said tax; and thereafter the 
 said court shall, from time to time, after the determination 
 of the preceding estate, and as the remainder of said estate 
 shall vest in the party or parties entitled in remainder or 
 reversion, determine, in its discretion, what proportion of 
 the residue of said tax shall be paid by the party or parties 
 in whom the estate shall so vest; and the judgment of said 
 court shall be final and each of the parties successively en 
 titled in remainder or reversion shall pay his proportion of 
 said tax to the register of wills within thirty days after the 
 date of such determination as to him; and the amount of 
 said tax shall be and remain a lien upon such estate until 
 the same shall be paid. 15 
 
 § 115£. Whenever an interest in any estate, real, personal 
 or mixed, less than any absolute interest, shall be devised 
 or bequeathed to or for the use and benefit of any person 
 or object, not exempt from the tax under section 102 of 
 this article, then only such interest so devised or bequeathed 
 shall be liable for said tax; and it shall be the duty of the 
 orphans' court of the county or city in which administration 
 is granted, or any other court assuming jurisdiction over 
 such administration, to determine as soon after administra- 
 tion is granted as possible, on application of such person 
 or object, the value of such interest liable for said tax, by 
 deducting from the whole value of the estate so much there- 
 of as shall be the value of the interest therein of any person 
 who, under said section 102 of this article, is exempt from 
 said tax, and the residue thereof shall be the value of said 
 interest upon which said tax is payable; and said tax so 
 ascertained, shall be paid by such person or object within 
 
 is Tyson v. State, 28 Md. 577; Pub. Gen. Laws 1SG0, art. 81, §: 
 138; Id. 1847, c. 222, § 6; Id. 1S74, c. 483, § 127.
 
 Md., VIII. a.] APPENDIX OF STATUTES. 507 
 
 90 days from such ascertainment, with interest thereon at 
 6 per cent, per annum, after the expiration of twelve (12) 
 months from the death of the decedent, under whose will, 
 or by whose intestacy said interest is acquired, if said tax 
 has not sooner been paid, or within 90 days from the time 
 that it shall be ascertained that such person or object shall 
 be entitled to any such interest in any estate; but such tax 
 shall bear interest at the rate of 6 per cent, per annum from 
 the expiration of twelve (12) months from said death; but 
 if such person or object shall fail to pay said tax, as above 
 provided, then such person, or object shall at the time when 
 he, she or it, comes into possession of such estate, pay a tax 
 as provided for in said section 102, on the whole value 
 thereof. [As added by chapter 493, Laws Md. 1891.] 
 
 § 116.. If any of the parties mentioned in the last preced- 
 ing section, shall refuse or neglect to pay the several propor- 
 tions, so decreed by the orphans' court, within thirty days 
 from the time of such decree, the court shall order and di- 
 rect the executor or administrator to sell all the right, title 
 and interest of such party in and to said estate or property, 
 or so much thereof as the court may deem necessary to pay 
 his proportion of said tax and all expenses of sale. 18 
 
 § 117. The bond of an executor or administrator shall be 
 liable for all money he may receive under this article of 
 taxes, or for the proceeds of the sales of real estate received 
 by him thereunder. 17 
 
 § 118. If any executor or administrator shall fail to per- 
 form any of the duties imposed upon him by this article, the 
 orphans' court of the county in which the administration 
 was granted, may revoke his administration, and his bond 
 shall be liable, and the same proceedings shall be had 
 against him as if his administration had been revoked for 
 any other cause. 18 
 
 § 119. The power and duties of an administrator de bonis 
 non, or with the will annexed, shall be the same under this 
 article as those of an executor or administrator, and he shall 
 be subject to the same liabilities. 19 
 
 i6 Pub. Gen. Laws 1S60, art. 81, § 139; Id. 1847, c. 222, § 7; Id. 
 1874, c. 4S3, § 128. 
 
 " Pub. Gen. Laws 1SG0, art, 81, § 140; Id. 1847, c. 222. § 8; Id. 
 1874. c. 483, § 129. 
 
 is Pub. Gen, Laws 1S60, art. 81, § 141; Id. 1847, c. 222, § 9; Id. 
 1874. c. 483, § 130. 
 
 is Pub. Gen. Laws 1SG0, art. 81, § 142; Id. 1847, c. 222, § 10; Id. 
 1S74, c. 4S3, § 131.
 
 508 APPENDIX OF STATUTES. [Md. , VIII. a. 
 
 § 120. In all cases where any estate, real, personal or mixed, 
 shall be subject to the collateral inheritance tax imposed by 
 this article, and no administration is taken out on the estate 
 of the person who died seized and possessed thereof, within 
 ninety days after the death of said person, the orphans' 
 court of the county in which such administration should be 
 granted, shall issue a summons for the parties entitled to 
 administration to show cause wherefore they do not admin- 
 ister. 20 
 
 Provided however that when any real estate shall be sub- 
 ject to said tax, and no administration has been taken on 
 the estate of the person who died seized thereof; the or- 
 phans' court of the county where said real estate shall be 
 situate, may on the application of any one interested in said 
 real estate appoint appraisers to value the same as pro- 
 vided by the preceding section of this article, and the 
 amount of said tax may be paid to the register of wills of 
 the county when the said application shall be paid. [Sec- 
 tion 120 as amended by Laws 1892, c. 473.] 
 
 § 121. If the parties entitled by law to administration 
 do not administer within a reasonable time to be fixed by 
 the said court, or if they be incapable, or being capable, 
 they decline or refuse to appear on proper summons or no- 
 tice, administration shall be granted to such person as the 
 court may deem proper. 21 
 
 § 122. In all cases where application is made to the or- 
 phans' court or register of wills of any county or the city 
 of Baltimore, for letters testamentary or of administration, 
 the said court or register shall inquire of the person mak- 
 ing the application whether he knows or believes that there 
 is any real estate of the decedent liable to the collateral 
 inheritance tax, and the answer of such applicant shall be 
 given on oath if the court or register requires it. 22 
 
 § 123. The register of wills shall give to the person pay- 
 ing the collateral inheritance tax imposed by this article, 
 duplicate receipts for said tax, one of which shall be for- 
 warded by said person to the treasurer, to be by him pre- 
 
 20 Pub. Gen. Laws 1860, art. 81, § 143; Id. 1847, c. 222, § 10; Id. 
 1874, c. 483, § 132. 
 
 si Pub. Gen. Laws 1860, art. 81, § 144; Id. 1847, c. 222, § 10; Id. 
 1874, c. 483, § 133. 
 
 22 Pub. Gen. Laws 1860, art. 81, § 145; Id. 1844, c. 184, § 4; Id. 
 1874, c. 483, § 134.
 
 Md., VIII. a.] APPENDIX OF STATUTES. 509 
 
 served, and copies thereof shall be evidence in suit upon the 
 bond of said register. 28 
 
 § 124. It shall be the duty of the several clerks and the 
 several registers of wills in this state to account with and 
 pay to the treasurer, on the first Monday of March, June, 
 September and December, in each and every year, all sums 
 of money received by them respectively, for which they 
 shall be allowed a commission of five per centum upon the 
 amount so paid over. 24 
 
 § 125. If any of the said clerks or registers shall fail to 
 account and pay over as required in the preceding section, 
 the comptroller shall, in thirty days thereafter, give notice 
 thereof to the state attorney for the county or city whose 
 duty it shall be to put the bond of such clerk or register 
 in suit for the use of the state, in which suit a recovery 
 shall be had for the amount appearing to be due, with in- 
 terest at the rate of 10 per cent, per annum, from the date 
 or dates when the same is payable as aforesaid, which re- 
 covery shall be evidence of misbehavior, and upon convic- 
 tion thereof the said clerk or register shall be removed from 
 office, which shall thereupon be filled as prescribed by the 
 constitution; and such failure on the part of any clerk or 
 register shall amount to a forfeiture of the commission to 
 which he would otherwise be entitled. 
 
 23 Pub. Gen. Laws 1860, art. 81, § 146; Id. 1845, c. 71, § 3; Id. 
 1847, c. 222, § 12; Id. 1862, c. 157; Id. 1868, c. 196; Id. 1874, c. 483, 
 § 135. 
 
 24 Banks v. State, 60 Md. 305; Pub. Gen. Laws 1860, art. 81, § 
 147; Id. 1845, c. 71, §§ 2, 3; Id. 1847, c. 222, § 12; Id. 1868, c. 196; 
 Id. 1874, c. 483, § 136.
 
 510 APPENDIX OF STATUTES. [Cal. , IX. a. 
 
 IX. CALIFORNIA. 
 
 (a) Laws 1893, Ch. CLXVIII, with Amendments to 1895. 
 
 An act to establish a tax on collateral inheritances, be- 
 quests, and devises, to provide for its collection, and 
 to direct the disposition of the proceeds. 
 
 Approved March 23, 1893, and amended by chapter 28, 
 Laws 1895. 
 
 The people of the state of California, represented in sen- 
 ate and assembly, do enact as follows: 
 
 § 1. After the passage of this act, 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 resi- 
 dent of this state at the time of death, which property, or 
 any part thereof, shall be within this state, or any interest 
 therein, or income therefrom, which shall be transferred by 
 deed, grant, sale, or gift, made in contemplation of the death 
 of the grantor or bargainor, or intended to take effect in pos- 
 session or enjoyment after such death to any person or per- 
 sons, or to any body politic or corporate, in trust or other- 
 wise, or by reason whereof any person or body politic or cor- 
 porate shall become beneficially entitled in possession or ex- 
 pectancy, to any property or to the income thereof, other 
 than to or for the use of his or her father, mother, husband, 
 wife, lawful issue, brother, sister, the wife or widow of a 
 son, or the husband of a daughter, or any child or children 
 adopted as such in conformity with the laws of the state of 
 California, and any lineal descendant of such decedent born 
 in lawful wedlock, or the societies, corporations, and insti- 
 tutions now exempted by law from taxation, by reason 
 whereof any such person or corporation shall become bene- 
 ficially entitled, in possession or expectancy, to any such 
 property or to the income thereof, shall be and is subject to 
 a tax of five dollars on every hundred dollars of the market 
 value of such property, and at a proportionate rate for any 
 less amount, to be paid to the treasurer of the proper coun- 
 ty, as hereinafter defined, for the use of the state; and all 
 administrators, executors, and trustees shall be liable for 
 any and all such taxes until the same shall have been paid, 
 as hereinafter directed; provided, that an estate which may
 
 Cal., IX. a.] APPENDIX OF STATUTES. 511 
 
 be valued at a less sum than five hundred dollars shall not 
 be subject to such duty or tax. 
 
 § 2. When any grant, gift, legacy, or succession upon which 
 a tax is imposed by section one of this act shall be an estate, 
 income, or interest for a term of years, or for life, or deter- 
 minable upon any future or contingent event, or shall be a 
 remainder, reversion, or other expectancy, real or personal, 
 the entire property or fund by which such estate, income, 
 or interest is supported, or of which it is a part, shall be 
 appraised, immediately after the death of the decedent and 
 the market value thereof determined, in the manner provid- 
 ed in section eleven of this act, and the tax prescribed by 
 this act shall be immediately due and payable to the treas- 
 urer of the proper county, and, together with the interest 
 thereon, shall be and remain a lien on said property until 
 the same is paid; provided, that the person or persons, or 
 body politic or corporate, beneficially interested in the prop- 
 erty chargeable with said tax, may elect not to pay the same 
 until they shall come into the actual possession or enjoy- 
 ment of such property, and in that case such person or per- 
 sons, or body politic or corporate, shall execute a bond to 
 the people of the state of California, in a penalty of twice 
 the amount of the tax arising upon personal estate, with 
 such sureties as the said superior court may approve, con- 
 ditioned for the payment of said tax, and interest thereon, 
 at such time or period as they or their representatives may 
 come into the actual possession or enjoyment of such prop- 
 erty, which bond shall be filed in the office of the county 
 clerk of the proper county ; provided further, that such per- 
 son shall make a full and verified return of such property 
 to said court, and file the same in the office of the county 
 clerk within one year from the death of the decedent, and 
 within that period enter into such security, and renew the 
 same every five years. [Chapter 28, Laws 1895, amending 
 section 2.] 
 
 § 3. Whenever a decedent appoints or names one or more 
 executors or trustees, and makes a bequest or devise of prop- 
 erty to them in lieu of commissions or allowances, which 
 otherwise would be liable to said tax, or appoints them his 
 residuary legatees, and said bequest, devises, or residuary 
 legacies exceed what would be a reasonable compensation 
 for their services, such excess shall be liable to said tax; 
 and the superior court in which the probate proceedings are 
 pending shall fix the compensation. 
 
 § 4. All taxes imposed by this act, unless otherwise herein
 
 512 APPENDIX OF statutes. [Cal. , IX. a. 
 
 provided for, shall be due and payable at the death of the 
 decedent, and if the same are paid within eighteen months, 
 no interest shall be charged and collected thereon, but if not 
 so paid, interest at the rate of ten per centum per annum 
 shall be charged and collected from the time said tax ac- 
 crued; provided, that if said tax is paid within six months 
 from the accruing thereof a discount of five per centum shall 
 be allowed and deducted from said tax. And in all cases where 
 the executors, administrators, or trustees do not pay such 
 tax within eighteen months from the death of the decedent, 
 they shall be required to give a bond in the form and to the 
 effect prescribed in section two of this act for the payment 
 of said tax, together with interest. 
 
 § 5. The penalty of ten per centum per annum imposed by 
 section four hereof, for the non-payment of said tax, shall 
 not be charged in case where, by reason of claims made upon 
 the estate, necessary litigation, or other unavoidable cause 
 of delay, the estate of any decedent, or a part thereof, cannot 
 be settled at the end of eighteen months from the death of 
 the decedent; and in such cases only seven per centum per 
 annum shall be charged upon the said tax from the expira- 
 tion of said eighteen months until the cause of such delay 
 is removed. 
 
 § 6. Any administrator, executor, or trustee having in 
 charge or trust any legacy or property for distribution, sub- 
 ject to the said tax, shall deduct the tax therefrom, or if the 
 legacy or property be not money he shall collect the tax 
 thereon upon the market value thereof from the legatee or 
 person entitled to such property, and he shall not deliver, 
 or be compelled to deliver, any specific legacy or property 
 subject to tax to any person until he shall have collected the 
 tax thereon; and whenever any such legacy shall be charged 
 upon or payable out of real estate, the executor, adminis- 
 trator, or trustee shall collect said tax therefrom, and the 
 same shall remain a charge on such real estate until paid; 
 if, however, such legacy be given in money to any person 
 for a limited period, the executor, administrator, or trustee 
 shall retain the tax upon the whole amount; but if it be 
 not in money he shall make application to the superior court 
 to make an apportionment, if the case require it, of the sum 
 to be paid into his hands by such legatees, and for such fur- 
 ther order relative thereto as the case mav require. [Laws 
 1895, c. 28, § 6.] 
 
 § 7. All executors, administrators, and trustees shall have 
 full power to sell so much of the property of the decedent
 
 Cal.,IX. a.] appendix of statutes. 513 
 
 as will enable them to pay said tax, in the same manner as 
 they may be enabled by law to do for the payment of debts 
 of the estate, and the amount of said tax shall be paid as 
 hereinafter directed. 
 
 § 8. Every sum of money retained by an executor, admin- 
 istrator, or trustee, or paid into his hands, for any tax on 
 property, shall be paid by him within thirty days thereafter, 
 to the treasurer of the county in which the probate proceed- 
 ings are pending, and the said treasurer shall give, and 
 every executor, administrator, or trustee shall take duplicate 
 receipts for stub payment, one of which receipts said ex- 
 ecutor, administrator, or trustee shall immediately send to 
 the controller of the state, whose duty it shall be to charge 
 the treasurer so receiving the tax with the amount thereof, 
 and said controller shall seal said receipt with the seal of 
 his office, and countersign the same, and return it to the ex- 
 ecutor, administrator, or trustee, whereupon it shall be a 
 proper voucher in the settlement of his accounts; and an 
 executor, administrator, or trustee shall not be entitled to 
 credits in his accounts, nor be discharged from liability for 
 such tax, nor shall said estate be distributed unless he shall 
 produce a receipt so sealed and countersigned by the con- 
 troller, or a copy thereof, certified by him. 
 
 § 9. Whenever any debts shall be proven against the es- 
 tate of a decedent after the payment of legacies or distribu- 
 tion of property from which the said tax has been deducted 
 or upon which it has been paid, and a refund is made by 
 the legatee, devisee, heir, or next of kin, a proportion of the 
 tax so deducted or paid shall be repaid to him by the ex- 
 ecutor, administrator, or trustee, if the said tax has not been 
 paid to the county treasurer or to the state controller, or by 
 them, if it has been so paid. 
 
 § 10. Whenever any foreign executor or administrator 
 shall assign or transfer any stocks or loans in this state 
 standing in the name of a decedent, or held in trust for a 
 decedent, which shall be liable to the said tax, such tax 
 shall be paid to the treasurer of the proper county, on the 
 transfer thereof; otherwise the corporation permitting such 
 transfer shall become liable to pay such tax; provided, that 
 such corporation had knowledge before such transfer that 
 said stocks or loans are liable to said tax. 
 
 § 11. When the value of any inheritance, devise, bequest, 
 or other interest subject to the payment of said tax is un- 
 certain, the superior court in which the probate proceedings 
 law inher. — 33
 
 514 APPENDIX OF statutes. [Cal.,IX. a. 
 
 are pending, on the application of any interested party, or 
 upon his own motion, shall appoint some competent person 
 as appraiser, as often as and whenever occasion may require, 
 whose duty it shall be forthwith to give such notice, by mail, 
 to all persons known to have or claim an interest in such 
 property, and to such persons as the court may by order di- 
 rect, of the time and place at which he will appraise such 
 property, and at such time and place to appraise the same, 
 and make a report thereof, in writing, to said court, to- 
 gether with such other facts in relation thereto as said court 
 may by order require, to be filed with the clerk of such court; 
 and from this report the said court shall, by order, forth- 
 with assess and fix the market value of all inheritances, de- 
 vises, bequests, or other interests, and the tax to which the 
 same is liable, and shall immediately cause notice thereof 
 to be given, by mail, to all parties known to be interested 
 therein; and the value of every future, or contingent, or 
 limited estate, income, or interest shall, for the purposes of 
 this act, be determined by the rule, method, and standards 
 of mortality and of value that are set forth in the actuaries' 
 combined experience tables of mortality for ascertaining the 
 value of policies of life insurance and annuities and for the 
 determination of the liabilities of life insurance companies, 
 save that the rate of interest to be assessed in computing the 
 present value of all future interests and contingencies shall 
 be five per centum per annum; and the insurance commis- 
 sioner shall, on the application of said court, determine the 
 value of such future, or contingent, or limited estate, income, 
 or interest, upon the facts contained in such report, and 
 certify the same to the court, and his certificate shall be con- 
 clusive evidence that the method of computations adopted 
 therein is correct. The said appraiser shall be paid by the 
 county treasurer out of any funds that he may have in his 
 hands on account of said tax, on the certificate of the court, 
 at the rate of five dollars per day for every day actually and 
 necessarily employed in said appraisement, together with 
 his actual and necessary traveling expenses. [As amended 
 by chapter 28, Laws 1895, § 11.] 
 
 § 12. Any appraiser appointed by virtue of this act who 
 shall take any fee or reward from any executor, adminis- 
 trator, trustee, legatee, next of kin, or heir of any decedent, 
 or from any other person liable to pay said tax, or any por- 
 tion thereof, shall be guilty of a misdemeanor, and upon con- 
 viction thereof shall be fined not less than two bundled and
 
 Cal., IX. a.] APPENDIX OF STATUTES. 515 
 
 fifty dollars nor more than five hundred dollars, or impris- 
 oned in the county jail ninety days, or both, and in addition 
 thereto the court shall dismiss him from such service. 
 
 § 13. The superior court in the county in which is situate 
 the real property of a decedent who was not a resident of 
 the state, or in the county of which the decedent was a resi- 
 dent at the time of his death, shall have jurisdiction to hear 
 and determine all questions in relation to the tax arising 
 under the provisions of this act, and the court first acquiring 
 jurisdiction hereunder shall retain the same, to the exclusion 
 of every other. 
 
 § 14. If it shall appear to the superior court, or judge 
 thereof, that any tax accruing under this act has not been 
 paid according to law, it shall issue a citation, citing the 
 persons known to own any interest in or part of the prop- 
 erty liable to the tax to appear before the court on a day 
 certain, not more than ten weeks after the date of such 
 citation, and show cause why said tax should not be paid. 
 The service of such citation, and the time, manner, and 
 proof thereof, and the hearing and determination thereon, 
 and the enforcement of the determination or decree, shall 
 conform to the provisions of chapter twelve, of title eleven, 
 of part three of the Code of Civil Procedure; and the 
 clerk of the court shall, upon the request of the district 
 attorney or treasurer of the county, furnish without fee, 
 one or more transcripts of such decree, and the same shall 
 be docketed and filed by the county clerk of any county in 
 the state, without fee, in the same manner and with the 
 same effect as provided by section six hundred and seventy- 
 four of said Code of Civil 1'rocedure for filing a transcript 
 of an original docket. 
 
 § 15. Whenever the treasurer of any county shall have 
 reason to believe that any tax is due and unpaid under this 
 act, after the refusal or neglect of the persons interested 
 in the property liable to said tax to pay the same, he shall 
 notify the district attorney of the proper county, in writing, 
 of such failure to pay such tax, and the district attorney so 
 notified, if he have probable cause to believe a tax is due 
 and unpaid, shall prosecute the proceeding in the superior 
 court in the proper county, as provided in section fourteen 
 of this act, for the enforcement and collection of such tax. 
 [As amended by chapter 28, Laws 1895, § 15.] 
 
 § 16. The county clerk of each county shall, every three 
 months, make a statement, in writing, to the county treas-
 
 516 APPENDIX OF statutes. [Cal.,IX. a. 
 
 urer, of the property from which, or the party from which, 
 he has reason to believe a tax, under this act, is due and 
 unpaid. 
 
 § 17. Whenever the superior court of any county shall 
 certify that there was probable cause for issuing a citation, 
 and taking the proceedings specified in section fifteen of 
 this act, the state treasurer, shall pay, or allow to the treas- 
 urer of any county, all expenses incurred for services of 
 citation, and his other lawful disbursements that have not 
 otherwise been paid. [As amended by chapter 28, Laws 
 1895, § 15.] 
 
 § 18. The county clerk of each county shall keep a book 
 in which he shall enter the value of inheritances, devises, 
 bequests and other interests subject to the payment of said 
 tax, and the tax assessed thereon, and the amounts of any 
 receipts for payments thereon filed with him, which books 
 shall be kept by him as public records. 
 
 § 19. The treasurer of each county shall collect and pay 
 the state treasurer all taxes that may be due and payable 
 under this act, who shall give him a receipt therefor, of 
 which collection and payment he shall make a report, un- 
 der oath, to the controller,' between the first and fifteenth 
 days of May and December of each year, stating for what 
 estate paid, and in such form and containing such partic- 
 ulars as the controller may prescribe; and for all such taxes 
 collected by him and not paid to the state treasurer by the 
 first day of June and January of each year he shall pay in- 
 terest at the rate of ten per centum per annum. 
 
 § 20. The treasurer of each county shall be allowed to 
 retain, on all taxes paid and accounted for by him each 
 year, under this act, in addition to his salary or fees now 
 allowed by law, five per centum on the first fifty thousand 
 dollars so paid and accounted for by him, three per centum 
 on the next fifty thousand dollars so paid and accounted 
 for by him, and one per centum on all additional sums so 
 paid and accounted for by him. 
 
 § 21. Any person, or body politic or corporate, shall, upon 
 payment of the sum of fifty cents, be entitled to a receipt 
 from the county treasurer of any county, or a copy of the 
 receipt, at his option, that may have been given by said 
 treasurer for the payment of any tax under this act, to be 
 sealed with the seal of his office, which receipt shall desig- 
 nate on what real property, if any, of which any decedent 
 may have died seized, said tax has been paid, and by whom
 
 Cal., IX. a.] APPENDIX OF STATUTES. 517 
 
 paid, and whether or not it is in full of said tax; and said 
 receipt may be recorded in the clerk's office in the county 
 in which said property is situate, in a book to be kept by 
 said clerk for such purpose, which shall be labeled "Collat- 
 eral Tax." 
 
 § 22. All taxes levied and collected under this act shall 
 be paid into the treasury of the state, for the uses of the 
 state school fund. 
 
 § 23. All acts or parts of acts inconsistent with the pro- 
 visions of this act are hereby repealed.
 
 518 APPENDIX OF STATUTES. [lll.,X. 
 
 X. ILLINOIS. 
 
 [Taken from Laws of Illinois, by James B. Bradwell, Chicago Le- 
 gal News Co., Chicago, 1S95, p. 213; compared with Laws 111. 1895, 
 Reg. & Ex. Sess. p. 301.] 
 
 An act to tax gifts, legacies and inheritances in certain 
 cases and to provide for the collection of the same. Ap- 
 proved June 15, 1895. In force July 1, 18D5. 
 
 307. Rate of tax. 
 
 § 1. Be it enacted by the people of the state of Illinois, 
 represented in the general assembly, all property, real, per- 
 sonal and mixed, 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 
 decedent was not a resident of this state at the time of his 
 death, which property or any part thereof shall be within 
 this state or any interest therein or income therefrom, which 
 shall be transferred by deed, grant, sale or gift made in con- 
 templation of the death of the grantor or bargainor or in- 
 tended to take effect, in possession or enjoyment after such 
 death, to any person or persons or to any body politic Or 
 corporate in trust or otherwise, or by reason whereof any 
 person or body politic or corporate shall become beneficially 
 entitled in possession or expectation to any property or in- 
 come thereof, shall be and is subject to a tax at the rate 
 hereinafter specified to be paid to the treasurer of the proper 
 county, for the use of the state; and all heirs, legatees and 
 devisees, administrators, executors and trustees shall be lia- 
 ble for any and all such taxes until the same shall have been 
 paid as hereinafter directed. When the beneficial interests 
 to any property or income therefrom shall pass to or for the 
 use of any father, mother, husband, wife, child, brother, sis- 
 ter, wife or widow of the son or the husband of the daughter 
 or any child or children adopted as such in conformity with 
 the laws of the state of Illinois or to any person to whom 
 the deceased, for not less than ten years prior to death stood 
 in the acknowledged relation of a parent, or to any lineal 
 descendant born in lawful wedlock; in every such case the 
 rate of tax shall be one dollar on every hundred dollars of 
 the clear market value of such property received by each 
 person and at and after the same rate for every less amount,
 
 111., X.] APPENDIX OF STATUTES. 519 
 
 provided that any estate which may be valued at a less sura 
 than twenty thousand dollars shall not be subject to any 
 such duty or taxes; and the tax is to be levied in above 
 cases only upon the excess of twenty thousand dollars re- 
 ceived by each person. When the beneficial interests to 
 any property or income therefrom shall pass to or for the 
 use of any uncle, aunt, niece, nephew or any lineal descend- 
 ant of the same, in every such case the rate of such tax shall 
 be two dollars on every one hundred dollars of the clear 
 market value of such property received by each person on 
 the excess of two thousand dollars so received by each per- 
 son. In all other cases the rate shall be as follows: On 
 each and every hundred dollars of the clear market value 
 of all property and at the same rate for any less amount; on 
 all estates of ten thousand dollars and less, three dollars; 
 on all estates of over ten thousand dollars and not exceed- 
 ing twenty thousand dollars, four dollars, on all estates over 
 twenty thousand, and not exceeding lift}' thousand, five 
 dollars; and on all estates over fifty thousand dollars, six 
 dollars: provided that an estate in the above case which 
 may be valued at a less sum than five hundred dollars shall 
 not be subject to any duty or tax. 
 
 308. Lineal descendant — Life estate or for term of 
 years — Rule as to taxation — Bond. 
 
 § 2. When any person shall bequeath or devise any prop- 
 erty or interest therein or income therefrom to mother, fa- 
 ther, husband, wife, brother and sister, the widow of the son 
 or a lineal descendant during the life or for a term of years 
 or remainder to the collateral heir of the decedent, or to the 
 stranger in blood or to the body politic or corporate at their 
 decease, or on the expiration of such term, the said life es- 
 tate or estates for a term of years shall not be subject to 
 any tax and the prooerty so passing shall be a] (praised im- 
 mediately after the death at what was the fair market value 
 thereof at the time of the death of the decedent in the man- 
 ner hereinafter provided, and after deducting therefrom the 
 value of said life estate, or term of years, the tax transcribed 
 by this act on the remainder shall be immediately due and 
 payable to the treasurer of the proper county, and, together 
 with the interests thereon, shall be and remain a lien on said 
 property until the same is paid: provided, that the person 
 or persons or body politic or corporate beneficially interested 
 in the property chargeable with said tax elect not to pay 
 the same until they shall come in the actual possession or
 
 520 APPENDIX OF STATUTES. [111. , X. 
 
 enjoyment of such property, or, in that case said person or 
 persons or body politic or corporate shall give a bond to the 
 people of the state of Illinois in the penalty of three times 
 the amount of the tax arising upon such estate with such 
 sureties as the county judge may approve, conditioned for 
 the payment of the said tax and interest thereon at such 
 time or period as they or their representatives may come 
 into the actual possession or enjoyment of said property; 
 which bond shall be filed in the office of the county clerk of 
 the proper county: provided further, that such person shall 
 make a full, verified return of said property to said county 
 judge, and file the same in his office within one year from 
 the death of the decedent, and within that period enter into 
 such securities and renew the same for five years. 
 
 309. Taxes — When payable — Penalty. 
 
 § 3. All taxes imposed by this act, unless otherwise herein 
 provided for, shall be due and payable at the death of the 
 decedent and interest at the rate of six per cent per annum 
 shall be charged and collected thereon for such time as said 
 taxes is not paid: provided, that if said tax is paid within 
 six months from the accruing thereof, interest shall not be 
 charged or collected thereon, but a discount of five per cent 
 shall be allowed and deducted from said tax, and in all cases 
 where the executors, administrators or trustees do not pay 
 such tax within one year from the death of the decedent, 
 they shall be required to give a bond in the form and to the 
 effect prescribed in section 2 of this act for the payment of 
 said tax, together with interest. 
 
 310. Inheritance tax — When, how and by whom 
 
 paid. 
 
 § 4. Any administrator, executor or trustee having any 
 charge or trust in legacies or property for distribution sub- 
 ject to the said tax shall deduct the tax therefrom, or if the 
 legacy or property be not money he shall collect a tax there- 
 on upon the appraised value thereof from the legatee or per- 
 son entitled to such property, and he shall not deliver or be 
 compelled to deliver any specific legacy or property subject 
 to tax to any person until he shall have collected the tax 
 thereon; and whenever any such legacy shall be charged 
 upon or payable out of real estate the heir or devisee before 
 paying the same shall deduct said tax therefrom, and pay 
 the same to the executor, administrator or trustee, and the
 
 111., X.] APPENDIX OF STATUTES. 521 
 
 same shall remain a charge on such real estate until paid, 
 and the payment thereof shall be enforced by the executor, 
 administrator or trustee in the same manner that the said 
 payment of said legacies might be enforced, if, however, 
 such legacy be given in money to any person for a limited 
 period, he shall retain the tax upon the whole amount, but 
 if it be not in money he shall make application to the court 
 having jurisdiction of his accounts, to make an apportion- 
 ment if the case requires it of the sum to be paid into his 
 hands by such legatees, and for such further order relative 
 thereof as the case may require. 
 
 311. Powers of executors and administrators. 
 
 § 5. All executors, administrators and trustees shall have 
 full power to sell so much of the property of the decedent as 
 will enable them to pay said tax, in the same manner as they 
 may be enabled to do by law for the payment of duties of 
 their testators and intestates, and the amount of said tax 
 shall be paid as hereinafter directed. 
 
 312. Tax to be paid to treasurer — Sealed receipt. 
 
 § 6. Every sum of money retained by any executor, ad- 
 ministrator or trustee, or paid into his hands for any tax on 
 any property, shall be paid by him within thirty days there- 
 after to the treasurer of the proper county, and the said 
 treasurer or treasurers shall give, and every executor, ad- 
 ministrator or trustee shall take, duplicate receipts from 
 him of said payments, one of which receipts he shall imme- 
 diately send to the state treasurer, whose duty it shall be to 
 charge the treasurer so receiving the tax with the amount 
 thereof, and shall seal said receipt with the seal of his office 
 and countersign the same and return it to the executor, ad- 
 ministrator or trustee, whereupon it shall be a proper vouch- 
 er in the settlements of his accounts ; but the executor, ad- 
 ministrator or trustee shall not be entitled to credit in his 
 accounts or be discharged from liability for such tax unless 
 he shall purchase a receipt so sealed and countersigned by 
 the treasurer and a copy thereof certified by him. 
 
 313. When real estate liable to tax — Duty of ex- 
 
 ecutor — Information in -writing to the 
 treasurer. 
 
 § 7. Whenever any of the real estate of which any dece- 
 dent may die seized shall pass to any body politic or corpo-
 
 522 APPENDIX OF STATUTES. [I11.,X. 
 
 rate, or to any person or persons, or in trust for them, or 
 some of them, it shall be the duty of the executor, adminis- 
 trator or trustee of such decedent to give information there- 
 of in writing to the treasurer of the county where said real 
 estate is situated, within six months after they undertake 
 the execution of their expected duties, or if the fact be not 
 known to them within that period, then within one month 
 after the same shall have come to their knowledge. 
 
 314. When portion of tax repaid to legatee — "Who 
 
 has to refund a portion of the legacy. 
 
 § 8. Whenever debts shall be proved against the estate 
 of the decedent after distribution of legacies from which the 
 inheritant [inheritance] tax has been deducted in compliance 
 with this act, and the legatee is required to refund any por- 
 tion of the legacy, a proportion of the said tax shall be re- 
 paid to him by the executor or administrator if the said tax 
 has not been paid into the state or county treasury, or by the 
 county treasurer if it has been so Daid. 
 
 315. Foreign executor or administrator — Property 
 
 in this state. 
 
 § 9. Whenever any foreign executor or administrator shall 
 assign or transfer any stocks or loans in this state standing 
 in the name of decedent, or in trust for a decedent, which 
 shall be liable to the said tax, such tax shall be paid to the 
 treasury or treasurer of the proper county on the transfer 
 thereof, otherwise the corporation forming such transfer 
 shall become liable to pay such taxes, provided that such 
 corporation has knowledge before such transfer that said 
 stocks or loans are liable to such taxes. 
 
 316. When tax paid erroneously. 
 
 § 10. When any amount of said tax shall have been paid 
 erroneously to the state treasury, it shall be lawful for him 
 on satisfactory proof rendered to him by said county treas- 
 urer of said erroneous payments to refund and pay to the 
 executor, administrator or trustee, person or persons who 
 have paid any such tax in error the amount of such tax so 
 paid, provided that all applications for the repayment of said 
 tax shall be made within two years from the date of said 
 payment.
 
 I11.,X.] APPENDIX OF STATUTES. 523 
 
 317. How value of property fixed. 
 
 § 11. In order to fix the value of property of persons whose 
 estate shall be subject to the payment of said tax, the county 
 judge, on the application of any interested party or upon his 
 own motion, shall appoint some competent person as ap- 
 praiser as often as or whenever occasion may require, whose 
 duty it shall be forthwith to give such notice by mail to 
 all persons known to have or claim an interest in such 
 property and to such persons as the county judge may 
 by order direct of the time and place he will appraise 
 such property, and at such time and place to appraise 
 the same at a fair market value; and for that purpose the ap- 
 praiser is authorized by leave of the county judge to use sub- 
 poenas for and to compel the attendance of witnesses before 
 him and to take the evidence of such witnesses under oath 
 concerning such property and the value thereof, and he shall 
 make a report thereof and of such value, in writing, to said 
 county judge, with the depositions of the witnesses examined, 
 and such other facts in relation thereto and to said matter as 
 said count}' judge may by order require to be filed in the 
 office of the clerk of said county court; and from this report 
 the said county judge shall forthwith use and fix the then 
 cash value of all estates, annuities, and life estates or terms 
 of years growing out of said estate, and the tax to which the 
 same is liable, and shall immediately give notice by mail to 
 all parties known to be interested therein. Any person or 
 persons dissatisfied with the appraisement or assessment 
 may appeal therefrom to the county court of the proper 
 county within sixty days after the making and filing of such 
 appraisement or assessment on paying the given security 
 proof to the county judge to pav all costs, together with 
 whatever taxes that shall be fixed by said court. The said 
 appraiser shall be paid by the county treasurer out of any 
 funds he may have in his hands on account of said tax, on 
 the certificate of the county judge, at the rate of three dol- 
 lars per day for every day actually and necessarily employed 
 in said appraisement, together with his actual and necessary 
 traveling expenses. 
 
 318. Appraisers taking fee or reward — Penalty. 
 
 § 12. Any appraiser appointed by this act who shall take 
 any fee or reward from any executor, administrator, trustee, 
 legatee, next of kin or heir of any decedent, or from any
 
 524 APPENDIX OF STATUTES. [111., X. 
 
 other person liable to pay said tax or any portion thereof, 
 shall be guilty of a misdemeanor, and upon conviction in 
 any court having jurisdiction of misdemeanors he shall be 
 fined not less than two hundred and fifty dollars nor more 
 than five hundred dollars and imprisoned not exceeding 
 ninety days; and in addition thereto the county judge shall 
 dismiss him from such service. 
 
 319. Jurisdiction of county court. 
 
 § 13. The county court in the county in which the real 
 property is situated of the decedent who was not a resident 
 of the state or in the county of which the deceased was a 
 resident at the time of his death, shall have jurisdiction to 
 hear and determine all questions in relation to the tax 
 arising under the provisions of this act, and the county court 
 first acquiring jurisdiction hereunder shall retain the same 
 to the exclusion of every other. 
 
 320. Proceedings when tax has not been paid. 
 
 § 14. If it shall appear to the county court that any tax 
 accruing under this act has not been paid according to law, 
 it shall issue a summons summoning the persons interested 
 in the property liable to the tax to appear before the court 
 on a day certain not more than three months after the date 
 of such summons, to show cause why said tax should not be 
 paid. The process, practice and pleadings, and the hearing 
 and determination thereof, and the judgment in said court 
 in such cases shall be the same as those now provided, or 
 which may hereafter be provided in probate cases in the 
 county courts in this state and the fees and costs in such 
 cases shall be the same as in probate cases in the county 
 courts of this state. 
 
 321. Duty of officers -when tax not paid. 
 
 § 15. Whenever the treasurer of any county shall have 
 reason to believe that any tax is due and unpaid under this 
 act, after the refusal or neglect of the person interested in 
 the property liable to pay said tax to pay the same, he shall 
 notify the state's attorney of the proper county, in writing, 
 of such refusal to pay said tax, and the state's attorney so 
 notified, if he has proper cause to believe a tax is due 
 and unpaid, shall prosecute the proceeding in the county 
 court in the proper county, as provided in section 14 of this
 
 111., X.] APPENDIX OF STATUTES. 525 
 
 act, for the enforcement and collection of such tax, and in 
 such case said court shall allow as costs in the said case 
 such fees to said attorney as he may deem reasonable. 
 
 322. Statement in writing. 
 
 § 16. The county judge and county clerk of each county 
 shall, every three months, make a statement in writing to the 
 county treasurer of the county of the property from which 
 or the party from whom he has reason to believe a tax under 
 this act is due and unpaid. 
 
 323. Expenses of proceedings. 
 
 § 17. Whenever the county judge of any county shall cer- 
 tify that there was probable cause for issuing a summons 
 and taking the proceedings specified in section fourteen of 
 this act the state treasurer shall pay or allow to the treasury 
 of any county all expenses incurred for service of summons 
 and his other lawful disbursements that has not otherwise 
 been paid. 
 
 324. Book to be kept in the office of the county- 
 
 judge. 
 
 § 18. The treasurer of the state shall furnish to each coun- 
 ty judge a book in which he shall enter the returns made by 
 appraisers, the cash value of annuities, life estates and terms 
 of years and other property fixed by him, and the tax as- 
 sessed thereon and the amounts of any receipts for payments 
 thereof filed with him, which books shall be kept in the office 
 of the county judge as a public record. 
 
 325. Treasurer to pay the state treasurer all 
 
 taxes. 
 
 § 19. The treasurer of each county shall collect and pay 
 the state treasurer all taxes that may be due and payable 
 under this act, who shall give him a receipt therefor, of 
 which collection and payment he shall make a report under 
 oath to the auditor of public accounts on the first Monday 
 in March and September of each year, stating for what 
 estate paid and in such form and containing such particulars 
 as the auditor may prescribe; and for all said taxes collect- 
 ed by him and not paid to the state treasurer by the first 
 day of October and April of each year, he shall pay interest 
 at the rate of ten per cent, per annum.
 
 526 APPENDIX OF STATUTES. [I11.,X. 
 
 326. Treasurer's commission or salary. 
 
 § 20. The treasurer of each county shall be allowed to re- 
 tain two per cent, on all taxes paid and accounted for by 
 him under this act in full for his services in collecting and 
 paying- the same in addition to his salary or fees now allowed 
 by law. 
 
 327. Receipt. 
 
 § 21. Any person or body politic or corporate shall upon 
 the payment of the sum of fifty cents, be entitled to a receipt 
 from the county treasurer of any county or the copy of the 
 receipt, at his option, that may have been given by said treas- 
 urer for the payment of any tax under this act, to be sealed 
 with the seal of his office, which receipt shall designate on 
 what real property, if any, of which any deceased may have 
 died seized, said tax has been paid and by whom paid, and 
 whether or not it is in full of said tax and said receipt may be 
 recorded in the clerk's office of said county in which the 
 property may be situated in the book to be kept by said clerk 
 for such purpose. 
 
 328. Lien of the collateral inheritance tax. 
 
 § 22. The lien of the collateral inheritance tax shall con- 
 tinue until the said tax is settled and satisfied: provided, 
 that said lien shall be limited to the property chargeable 
 therewith: and, provided further that all inheritance taxes 
 shall be sued for within five years after they are due and 
 legally demandable, otherwise they shall be presumed to be 
 paid and cease to be a lien as against any purchasers of real 
 estate. 
 
 329. Repeal. 
 
 § 23. All laws or parts of laws inconsistent herewith be, 
 and the same are, hereby repealed.
 
 APPENDIX OF FORMS 
 
 USED UNDER THE NEW YORK STATUTE.* 
 
 I. Petition of District Attorney to Enforce Payment. 
 
 II. Petition of Executor, etc.. for Appraiser. 
 
 III. Petition of County Treasurer or Comptroller u New York City. 
 
 IV. Order for Citation. 
 V. Citation. 
 
 VI. Order Appointing Appraiser. 
 
 VII. Notice of Appraisement. 
 
 VIII. Appraiser's Report. 
 
 IX. Surrogate's Notice of Assessment. 
 
 X. Decree for District Attorney Assessing and Fixing Tax. 
 
 XL Affidavit for Costs of District Attorney. 
 
 XII. Decree for Executor Fixing Tax. 
 
 XIII. Notice to Superintendent of Insurance. 
 
 XIV. Superintendent's Report. 
 XV. Annuity Table. 
 
 I. 
 
 PETITION OF DISTRICT ATTORNEY TO EN- 
 FORCE PAYMENT. 
 
 Surrogate's Court, New York County. 
 
 In the Matter ol the Estate ) 
 
 of I 
 
 , Deceased. J 
 
 To the Surrogate's Court of the City and County of New- 
 York. 
 
 The petition of J. R. F., of the city of New York, respect- 
 fully shows: 
 
 I. That your petitioner is the district attorney of the 
 city and county of New York. 
 
 * These forms may be modified to conform to the facts in each case. 
 For a list of forms, see. also, In re Astor (Suit.) 2 N. Y. Supp. 630; 
 Redf. Suit. Prac. (5th Ed.) p. 1001. 
 
 LAW IxNHER. (527)
 
 528 appendix of forms. [Form I. 
 
 II. That on or about the day of , 1895, at 
 
 the city of New York, died, and was at the time of 
 
 h death a resident of the city and county of New York. 
 
 III. That said deceased left a last will and testament 
 
 dated , 18 — , which was duly admitted to probate in 
 
 the office of the surrogate of the county of New York, on 
 
 the day of , 18 — , wherein and whereby he 
 
 appointed , who duly qualified as such, and said let- 
 ters are still in force. 
 
 IV. That said decedent died seized or possessed of prop- 
 erty within this state, or subject to its laws, the value of 
 which exceeded the sum of five hundred dollars. 
 
 V. That upon the death of said certain of the 
 
 property of said decedent thereupon passed to . 
 
 VI. That none of the persons designated in the foregoing- 
 paragraph, No. V. of this petition, is a person or corpora- 
 tion exempt by law from taxation. 
 
 VII. That the property so passing, or some part thereof, 
 is subject to taxation under chapter 399 of the Laws of this 
 state, passed April 30, 1892, entitled "An act in relation to 
 taxable transfers of property-" 
 
 The foregoing allegations are made on information and 
 belief. 
 
 VIII. Your petitioner further shows that the comptroller 
 of the city and county of New York [or the county treasurer 
 
 of the county of ] has notified your petitioner in 
 
 writing of the refusal or neglect of the persons liable there- 
 for to pay the said tax, and that no part of said tax has 
 been paid, and your petitioner has probable cause to believe 
 that the same still remains due and unpaid. 
 
 Wherefore, your petitioner prays that a citation issue 
 
 herein to , citing to appear before this court 
 
 on a day to be designated therein, and show cause why the 
 tax under the act aforesaid should not be paid, and said 
 property be appraised if necessary for that purpose. 
 
 Dated the day of , 1895. 
 
 District Attorney of the City and County of New York. 
 State of New York, 
 
 City and County of New York 
 
 John R. Fellows, being duly sworn, says, that he has read 
 the foregoing petition and knows the contents thereof, and 
 that the same is true to the knowledge of deponent, except
 
 Form II.] appendix of forms. 529 
 
 as to the matters therein stated to be alleged upon infor- 
 mation and belief, and as to those matters he believes it 
 to be true. 
 
 Sworn to before me this 1 
 
 day of , 1895. 
 
 II. 
 
 PETITION OF EXECUTOR, ETC., FOR AP- 
 PRAISER. 
 
 [Title.] 
 
 To , Surrogate. 
 
 The petition of A. respectfully shows: 
 
 First. Your petitioner is the executor named in the last 
 will and testament of the decedent, and as such is a person 
 interested in the estate of the above named decedent. 
 
 Second. That the said decedent departed this life on 
 
 the day of 1895, in the city of , and that he 
 
 was a resident [or, non-resident] of this state. 
 
 Third. That said decedent left a last will and testament, 
 
 which was on the day of duly admitted to 
 
 probate, and that are the executors of said will and 
 
 their post-office addresses are: [naming them.] 
 
 Fourth. That, as your petitioner is informed and believes, 
 the property of said decedent, passing by said will, or some 
 portion thereof, or some interest therein, is subject to the 
 payment of the tax imposed by the law in relation to tax- 
 able transfers of property. 
 
 Fifth. That all the persons who are interested in said 
 estate and who are entitled to notice of all proceedings 
 herein, including the comptroller of the city of New York 
 [or, county treasurer], and their post-office addresses, are as 
 follows, viz.: 
 
 Wherefore, your petitioner prays that you will appoint 
 some competent person as appraiser as provided by law. 
 
 And your petitioner will ever pray. 
 
 , Petitioner. 
 
 [Verification.] 
 
 LAW INHER. — 34
 
 530 appendix of forms. [Forms III.-V. 
 
 III. 
 
 PETITION OF COUNTY TREASURER OR COMP- 
 TROLLER IN NEW YORK CITY. 
 
 [Under chapter 399, Laws N. Y. 1892, § 11, these offi- 
 cials are also authorized to make application for the ap- 
 pointment of an appraiser. After alleging the official title 
 of the petitioner, the form may be made to conform to 
 No. H.] 
 
 IV. 
 
 ORDER FOR CITATION. 
 
 At a surrogate's court held at the office of the surrogate, 
 in the county of , on the day of , 18 — . 
 
 Present: Hon. , Surrogate. 
 
 In the Matter of the Estate 'j 
 of I 
 , Deceased. J 
 
 On reading and filing the petition of , of the county 
 
 of New York, verified the day of , 18 — . It is 
 
 ordered, that a citation issue herein in accordance with 
 the prayer of said petitioner. 
 
 , Surrogate. 
 
 V. 
 CITATION. 
 
 The people of the state of New York, by the grace of God, 
 free and independent. To send greeting: 
 
 You and each of you are hereby cited and required per- 
 sonally to be and appear in the court of the surrogates of the 
 city and county of New York, at the county court house, in 
 
 said city, on the day of , 1895, at o'clock 
 
 in the noon, to show cause why the tax imposed by 
 
 chapter 399 of the Laws of 1892 of the state of New York 
 should not be paid on property passing to you under the will 
 
 of , deceased, proved herein by decree entered the 
 
 day of , 1895, and why such property should
 
 Forms V.,VL] appendix of forms. 531 
 
 not be appraised according to law, if necessary for that pur- 
 pose. 
 
 And such of you hereby cited as are under the age of twen- 
 ty-one years, are required to appear by your guardian, if you 
 have one, or if you have none, to appear and apply for one 
 to be appointed, or in the event of your neglect or failure to 
 do so, a guardian will be appointed by the surrogate to rep- 
 resent and act for you in the proceeding. 
 
 In testimony whereof, we have caused the seal of the sur- 
 rogate's court to be hereunto affixed. 
 
 Witness, , Esq., surrogate of our said county, at the 
 
 city of New York, the day of , in the year of 
 
 our Lord, one thousand eight hundred and ninety -five. 
 
 Clerk of the Surrogate's Court. 
 
 VI. 
 ORDER APPOINTING APPRAISER. 
 
 [Caption.] 
 Estate of — 
 
 On reading and filing the petiton of , praying for 
 
 the appointment of some competent person as appraiser, un- 
 der and pursuant to the law to tax transfers of property, in 
 certain cases, it is i 
 
 Ordered, that , Esq., be and he hereby is appointed 
 
 such appraiser. 
 
 And it is further ordered, that said appraiser shall give 
 the notice required by said law, in the manner and at the 
 time therein set forth (and said notice shall be five days,) to 
 the following persons, and to all other persons known to 
 have or claim an interest in the property of the decedent in 
 the above entitled proceeding, subject to the payment of 
 said tax; viz. : [Here take in names of persons, corporations, and 
 public officials to be served with notice."]
 
 532 appendix of forms. [Forms VII. , VIII. 
 
 VII. 
 NOTICE OF APPRAISEMENT. 
 
 Surrogate's Court, County of New York. 
 
 In the Matter of the Estate "j 
 
 of V Transfer Tax. 
 
 A., Deceased. j 
 
 You will please to take notice that, by virtue of an order 
 
 of Hon. , surrogate of the county of New York, made 
 
 and dated the day of , 1895, and pursuant to 
 
 the provisions of chapter 399 of the Laws of 1892, entitled 
 "An act in relation to taxable transfers of property," I shall, 
 
 on the day of , 1895, at o'clock in the 
 
 noon of that day, at the office of , No. 
 
 street, in the city of New York, proceed to appraise at its 
 
 fair market value, all the property of said , deceased, 
 
 late of said city, passing by his last will and testament or 
 by the intestate laws of the state of New York, which is sub- 
 ject to the payment of the tax imposed by the said act. 
 
 New York, , 1895. 
 
 , Appraiser. 
 
 To . 
 
 vni. 
 
 APPRAISER'S REPORT. 1 
 
 Surrogate's Court, County of New York. 
 
 In the Matter of the Estate "| 
 
 of V Transfer Tax. 
 
 A., Deceased. J 
 
 To the Surrogate's Court, County of New York. 
 
 I, the undersigned, who was, by an order, made and en- 
 tered on the day of , 1895, appointed appraiser, 
 
 under and in pursuance of the law in relation to the taxable 
 transfers of property, a certified copy of which order is here- 
 to attached, respectfully report: 
 
 First. That forthwith after my said appointment I took 
 
 i This form was used in Re Minturn, 3 N. Y. Law J. 804, and is 
 given more in detail for its practical use.
 
 Form VIII.] APPENDIX OF FORMS. 533 
 
 and subscribed the oath hereto attached, and I gave notice 
 by mail, postage prepaid, to all persons known to have or 
 claim an interest in all property subject to the tax imposed 
 by said law, and to the following named persons, being those 
 named by the surrogate in the said order, of the time and 
 place I would appraise the property of A., deceased, subject 
 to the payment of said tax; a true copy of said notice is also 
 hereto attached, viz.: {Here take in names of all persons entitled 
 to notice and notified.'] 
 Second. I further report, that at the time and place in said 
 
 notice stated, to wit, on the day of , 18 — , at 
 
 No. , in the city of New York, and at other and subse- 
 quent times and at divers places, I appraised all the property 
 
 of said , deceased, now subject to the payment of said 
 
 tax, at its fair market value, as follows, to wit: 2 
 
 A legacy in cash of $5,000 payable on the death of 
 decedent's wife who, at the time of his death, was of 
 the age of 78 years and 7 months, the present value 
 of said sum of f 5,000 being f 4,166.66 
 
 bequeathed to [giving in succession the name of each legatee, and 
 particulars as to estate taken under the will, or by law in cases of 
 intestacy]. 
 
 ******* 
 
 , the testator, by his will, among other things, di- 
 rects his executors on the death of his wife to pay out of his 
 residuary estate certain sums of money to individuals therein 
 named ; and in case of the death of any said persons before 
 his wife, or before he or she shall become entitled to said sum 
 of money, then such sum is to be paid to the issue of the one 
 so dying, and failing such issue, becomes part of the residue 
 of the estate of decedent which, under his will is bequeathed 
 to his son , and who, if he should predecease dece- 
 dent's wife has a power of appointment, by a will, of such 
 residue. The names of such persons together with sums re- 
 spectively bequeathed to them and the present values thereof 
 at the time of decedent's death are as follows: 
 
 ******* 
 
 In the event of any of said persons or their issue becoming 
 entitled to such property above mentioned, the present cash 
 values thereof as above appraised will then become subject 
 
 2 This clause should contain a minute description of the property 
 appraised, name of owner or person interested therein, and his 
 post-office address, and the fair market value of such property.
 
 534 appendix of forms. [Forms VIII. , IX. 
 
 to the payment of the tax imposed by said act, but the liabil- 
 ity to such payment cannot now be determined. 
 
 The following are the appearances before the appraiser: 
 The executors, by , attorneys, who object to any ap- 
 praisal of the property passing to the corporations mentioned 
 in the will, on the ground that the life tenant (decedent's 
 wife) is not dead, and that the tax, if any, on said property 
 is not payable until after her death ; and also that the leg- 
 acies to individuals named in the will, and payable on the 
 death of decedent's wife, cannot now be taxed on the ground 
 that such persons may never become entitled thereto, and 
 which cannot be determined until the death of the life-ten- 
 ant, &c. 
 
 * » 
 
 All of which is respectfully submitted. 
 
 Dated New York, , 18—. 
 
 , Appraiser. 
 
 IX. 
 SURROGATE'S NOTICE OF ASSESSMENT. 
 
 Surrogate's Court, City and County of New York. 
 In the Matter of the Estate ) 
 
 of y 
 
 - , Deceased. J 
 
 You are hereby notified that at the surrogate's court 
 of the city and county of New York, to be held on the 
 
 day of , 1895, at 10:30 a. in., at the county 
 
 court house, in the city of New York, I shall, from the re- 
 turn and report of the appraiser filed herein on the 
 
 day of , 18 — , assess and fix the cash value of all 
 
 such interest, estate, annuity, legacy or property as you and 
 each of you are given or entitled to receive from or out of 
 
 the estate left by the said , deceased, and the amount 
 
 of the tax to which the same is liable under chapter 399, 
 Laws 1892. 
 
 Dated New York, , 1895. 
 
 , Surrogate. 
 
 To .
 
 Form X.] appendix of forms. 635 
 
 DECREE FOR DISTRICT ATTORNEY ASSESS- 
 ING AND FIXING TAX. 
 
 At a surrogate's court, held in and for the county of New 
 York, at the county court house, in the city of New York, 
 on the day of , 1894. 
 
 Present: Hon. , Surrogate. 
 
 In the Matter of the Estate ") 
 
 of \ 
 
 ■ , Deceased. J 
 
 Upon reading and filing the report of , Esq., the ap- 
 praiser herein, and after hearing , on behalf of Hon. 
 
 John R. Fellows, district attorney, in support of said report, 
 
 and , of counsel for the herein, in opposition, 
 
 it is 
 
 Ordered: 1st — That the cash value at the date of dece- 
 dent's death, of the property and interests mentioned and 
 described in said report, which are subject to the payment of 
 the tax due, under the law in relation to taxable transfers 
 of property, is as follows: 
 
 Interest of $ 
 
 2d— That 
 
 the herein, make payment to the comptroller of the 
 
 city of New York, of the sum of dollars (f ), 
 
 being the amount of the tax upon the interest of said , 
 
 together with interest upon each of said sums, respectively, 
 
 at the rate of per centum per annum, from the 
 
 day of , 189- to the date of payment. 
 
 And it is further ordered, that said pay to Hon. 
 
 the sum of dollars, as and for his costs and 
 
 disbursements herein.
 
 536 appendix of forms. [Form XI. 
 
 XI. 
 
 AFFIDAVIT FOR COSTS OF DISTRICT AT- 
 TORNEY. 
 
 [Title.] 
 
 City and County of New York, ss. 
 
 being duly sworn, says, that he is in the 
 
 office of the district attorney for the county of New York, 
 and as such has had charge of the above entitled proceeding, 
 and is familiar with all the steps taken therein. 
 
 That this is a proceeding brought by the district attorney, 
 under section 15 of chapter 399 of the Laws of 1892, to en- 
 force payment of the transfer tax due under said chapter 399. 
 
 That in order to properly draw the petition in the above 
 matter it was necessary for deponent to cause an examina- 
 tion to be made of the records in the surrogate's office of this 
 county, and also of the will of said deceased, which was pro- 
 bated in said court, for the purpose of ascertaining the per- 
 sons liable to pay the transfer tax; and upon the informa- 
 tion so obtained, deponent drew the petition herein ; applied 
 for citation; procured an order therefor; had the citation 
 served; filed the proper proofs to have the matter placed 
 upon the calendar of this court upon the return day of said 
 citation ; and appeared in court on said return day. 
 
 Deponent verily believes that this is a proper case where 
 
 a allowance should be made to the district attorney, 
 
 for costs, as provided by law. 
 
 Sworn to before me this 1 
 
 day of , 1895.
 
 Form XII.] appendix of fokms. 637 
 
 xn. 
 
 DECREE FOR EXECUTOR FIXING TAX. 
 
 Present: Hon. , Surrogate. 
 
 In the Matter of the Estate ) 
 
 of V 
 
 , Deceased. J 
 
 On reading and filing the report of , Esq., the ap- 
 praiser herein, Ordered, 
 
 First. The said report is in all respects confirmed. 
 
 Second. That the fair market value of the property men- 
 tioned and described in said report, which is subject to the 
 payment of the tax imposed by the law in relation to the 
 taxable transfers of property is as follows; 
 
 Interest of $ 
 
 " " | 
 
 Third. That the amount of the tax to which the said prop- 
 erty and interests are liable is as follows, viz. : 
 
 On interest of $ 
 
 U it $ 
 
 together with interest [or penalty where one is imposed] 
 
 upon each of said sums, respectively, at the rate of 
 
 per centum per annum, from the day of , 189- 
 
 to the date of payment. 3 
 
 s Chapter 399, Laws 1892, § 13, provides for an appeal from these 
 orders, which must be taken to the surrogate within 60 days after 
 the order is filed. The grounds of appeal should be specifically 
 stated, and no other grounds will be considered by the surrogate.
 
 538 
 
 appendix of forms. [Forms XIII. , XIV. 
 
 xni. 
 
 NOTICE TO SUPERINTENDENT OF IN- 
 SURANCE. 
 
 Chambers of the Surrogate, 
 New York County. 
 
 New York, 
 
 -, 1895. 
 
 Dear Sir: — In pursuance of chapter 399, Laws of 1892, 
 you are hereby requested to determine and ascertain the val- 
 ues of the following' estates, annuities and interests. 
 
 Name. 
 
 Age. 
 
 Legacy or Estate. 
 
 Value or Amount. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 To , Superintendent 
 
 of the Insurance Department. 
 
 Yours respectfully, 
 
 -, Surrogate. 
 
 XIV. 
 
 SUPERINTENDENT'S REPORT. 
 
 Insurance Department. 
 
 Estate of , Deceased. 
 
 Albany, N. Y., , 1895. 
 
 Sir: — In reply to your request of the , inst., I give 
 
 below the present values desired: 
 
 Name. 
 
 Legacy. 
 
 P. V. at Date. 
 
 To Hon. 
 
 Very respectfully, 
 
 , Superintendent. 
 
 -, Surrogate County, N. Y.
 
 Form XV.] 
 
 APPENDIX OF FOKMS. 
 
 539 
 
 XV. 
 
 ANNUITY TABLE. 
 
 Table showing the value of an annuity of one dollar on a 
 single life, according to the table published by Jenkins 
 Jones, London, 1843, of mortality, at five per cent, interest 
 This table is employed by the insurance department. 
 
 
 No. of 
 
 
 No. of 
 
 
 No. of 
 
 
 No. of 
 
 
 Years 
 
 
 Years 
 
 
 Years 
 
 
 Years 
 
 Age. 
 
 Purchase 
 the 
 
 Age. 
 
 Purchase 
 the 
 
 Age. 
 
 Purchase 
 the 
 
 Age. 
 
 Purchase 
 the 
 
 
 Annuity 
 
 
 Annuity 
 
 
 Annuity 
 
 
 Annuity 
 
 
 is Worth 
 
 31 
 
 is Worth 
 
 61 
 
 is Worth 
 
 91 
 
 is Worth 
 
 1 
 
 $11,563 
 
 $12,965 
 
 $8,181 
 
 $1,447 
 
 2 
 
 13,420 
 
 32 
 
 12,854 
 
 62 
 
 7,966 
 
 92 
 
 1,153 
 
 3 
 
 14,135 
 
 33 
 
 12,740 
 
 63 
 
 7,742 
 
 93 
 
 816 
 
 4 
 
 14,613 
 
 34 
 
 12,623 
 
 64 
 
 7,514 
 
 94 
 
 524 
 
 5 
 
 14,837 
 
 35 
 
 12,502 
 
 65 
 
 7,276 
 
 95 
 
 238 
 
 6 
 
 15,041 
 
 36 
 
 12,377 
 
 66 
 
 7,034 
 
 
 
 7 
 
 15,166 
 
 37 
 
 12,249 
 
 67 
 
 6,787 
 
 
 
 8 
 
 15,226 
 
 38 
 
 12,116 
 
 68 
 
 6,536 
 
 
 
 9 
 
 15,210 
 
 39 
 
 11,979 
 
 69 
 
 6,281 
 
 
 
 10 
 
 15,139 
 
 40 
 
 11,837 
 
 70 
 
 6,023 
 
 
 
 11 
 
 15,043 
 
 41 
 
 11,695 
 
 71 
 
 5,764 
 
 
 
 12 
 
 14,937 
 
 42 
 
 11,551 
 
 72 
 
 5,504 
 
 
 
 13 
 
 14,826 
 
 43 
 
 11,407 
 
 73 
 
 5,245 
 
 
 
 14 
 
 14,710 
 
 44 
 
 11,258 
 
 74 
 
 4,990 
 
 
 
 15 
 
 14,588 
 
 45 
 
 11,105 
 
 75 
 
 4,744 
 
 
 
 16 
 
 14.460 
 
 46 
 
 10,947 
 
 76 
 
 4,511 
 
 
 
 17 
 
 14,334 
 
 47 
 
 10,784 
 
 77 
 
 4,277 
 
 
 
 18 
 
 14,217 
 
 48 
 
 10,616 
 
 78 
 
 4,035 
 
 
 
 19 
 
 14,108 
 
 49 
 
 10,443 
 
 79 
 
 3.776 
 
 
 
 20 
 
 14,007 
 
 50 
 
 10,269 
 
 80 
 
 3.515 
 
 
 
 21 
 
 13.917 
 
 51 
 
 10,097 
 
 81 
 
 3,263 
 
 
 
 22 
 
 13,833 
 
 52 
 
 9,925 
 
 82 
 
 3,020 
 
 
 
 23 
 
 13,746 
 
 53 
 
 9,748 
 
 83 
 
 2,797 
 
 
 
 24 
 
 13,658 
 
 54 
 
 9,567 
 
 84 
 
 2,627 
 
 
 
 25 
 
 13,567 
 
 55 
 
 9,382 
 
 85 
 
 2,471 
 
 
 
 26 
 
 13,473 
 
 56 
 
 9,193 
 
 86 
 
 2,328 
 
 
 
 27 
 
 13,377 
 
 57 
 
 8,999 
 
 87 
 
 2,193 
 
 
 
 28 
 
 13,278 
 
 58 
 
 8,801 
 
 88 
 
 2,080 
 
 
 
 29 
 
 13,177 
 
 59 
 
 8,599 
 
 89 
 
 1,924 
 
 
 
 80 
 
 13,072 
 
 60 
 
 8,392 
 
 90 
 
 1,723 
 
 
 
 RULES FOR COMPUTING THE VALUE OF THE LIFE 
 ESTATE OR ANNUITY 
 
 Calculate the interest at 5 per cent, for one year upon the 
 sum to the income of which the person is entitled. Multi-
 
 540 appendix of forms. [Form XV. 
 
 ply this interest by the number of years' purchase set oppo- 
 site the person's age in the table, and the product is the 
 gross value of the life estate of each person in said sum. 
 
 Examples: 
 
 Suppose a widow's age is 37, and she is entitled to dower 
 in real estate worth $350.75. One-third of this is $116,91§. 
 Interest on $116.91 one year, at five per cent., is $5.85. The 
 number of years' purchase which an annuity of one dollar 
 is worth, at the age of 37, as appears by the table, is 12 
 years and 249 /iooo parts of a year, which, multiplied by $5.85, 
 the income for one year, gives $61.75 and a fraction as the 
 gross value of her right of dower. 
 
 Suppose a man, whose age is 50, is tenant by the curtesy 
 in the whole of an estate worth $9,000. The annual interest 
 on the sum, at 5 per cent, is $450. The number of years' 
 purchase which an annuity of $1 is worth, at the age of 50, 
 as per table, is 10 269 / 1000 parts of a year, which, multiplied 
 by $450, the value of one year, gives $4,621.05 as the gross 
 value of his life estate in the premises, or the proceeds there- 
 of.
 
 TABLE OF CASES. 
 
 [REFERENCES are to pages.] 
 
 A 
 
 Acker, In re, 416. 
 Ackerman v. Gorton, 287. 
 Advocate-Gen., Brown v., 336. 
 v. Ramsey, 340. 
 Thompson v., 146, 159, 161, 
 169, 171, 195. 
 Alexander, In re, 55, 65, 149, Y60, 
 
 173, 177, 179. 
 Allen v. Pliila., 148, 175. 
 Alvaney v. Powell, 146, 148, 149, 
 159, 160, 137, 168, 169, 179, 187, 
 191, 195, 197, 200, 371. 
 Am. Coal Co. v. Comm. of Alle- 
 gany Co., 168, 173, 194. 
 Am. Geo. Soc. v. Comm. of 
 
 Taxes, 95. 
 Anderson v. Anderson, 131, 349, 
 
 386, 394. 
 Andover Co. v. Gould, 387. 
 Appeal of Alexander, 149, 160, 
 
 177, 179. 
 Appeal of Com., 131, 199, 200, 
 265, 412. 
 (Avery's Est.), 219, 407, 412, 
 
 413. 
 (Bittinger's Est.), 30, 44, 57, 
 65, 67, 135, 143, 146, 149, 
 150, 152, 167, 192, 194, 
 317, 371, 377, 399, 412, 
 423. 
 (Coleman's Est.), 157, 173, 
 
 177, 178, 196, 324. 
 (Cooper's Est.), 57, 210, 218, 
 223, 226, 234, 235, 239, 
 241, 242, 262, 270, 272, 
 301, 304. 317, 318, 319, 
 320, 321, 322, 323, 324. 
 325, 407, 412, 418, 423. 
 LAW INHER. (541j 
 
 Appeal of Com.— Cont'd, 
 
 (Fagely's Est.), 210, 235, 259, 
 262, 301, 318, 324, 303, 
 376, 377, 399, 412, 413, 
 415, 417, 423. 
 (Kerr's Est.), 385. 
 (Pepper's Est), 384. 
 (Small's Est), 41, 64, 65, 145, 
 146, 147, 150. 151, 152, 
 154, 157, 167, 174, 176, 
 179, 190, 194, 196, 385, 
 413. 
 Appeal of Coxe, 214, 329, 369. 
 Davenport, 329, 331. 
 Drayton, 44, 152, 157, 197, 3$L. 
 Du Bois, 329, 331, 333, 335. 
 Folmer, 114. 
 Fosselman, 259, 263. 
 James, 235, 236, 237, 260, 318, 
 319, 320, 325, 374, 377, 
 390, 407, 412, 419. 
 Mellon, 219, 233, 235, 236, 237, 
 240, 241, 242, 246, 260, 
 272, 299, 301, 304, 318, 
 319, 320, 321, 323, 325, 
 326, 377, 407, 409, 411, 
 412, 413, 423. 
 Orcutt, 55, 149, 151, 166, 171, 
 173, 174, 175, 176, 190, 
 191, 194, 197, 199, 219, 
 333, 407. 
 Packard, 121, 123. 
 Phila. Pro. City Mission, 142, 
 
 143, 378. 
 Reck, 326. 
 Rhymers, 113. 
 
 Seibert, 113, 329, 331, 333, 
 -537, 374, 377, 382, 389, 
 390. 
 Tyson, 347.
 
 542 
 
 TABLE OF CASES. 
 
 [References are to Pages.] 
 
 Appeal of Waugh, 329, 334. 
 
 Wrigibt, 329, 331, 369, 374, 378. 
 Arnaud v. Holland, 424. 
 Arnaud's Heirs v. His Executor, 
 
 7, 32, 58, 60. 
 Arnett, In re, 121, 356, 357, 358, 
 359, 376, 395, 397, 400, 420, 422, 
 423. 
 Arnold v. Arnold, 149, 161, 162. 
 Assn. Col. Orphans v. Mayor, 74, 
 94, 97, 101, 102, 103, 104, 105, 
 108, 110. 
 Astor, In re, 201, 209, 211, 212, 
 213, 214, 215, 218, 258, 263, 354, 
 355, 356, 360, 368, 377, 386, 394, 
 396, 398, 399, 400, 401, 406. 
 Atkinson v. Anderson, 131. 
 Attorney-General v. Abdy, 113, 
 115. 
 v. Allen, 369, 378, 382. 
 v. Beetson, 159, 160, 171, 179. 
 v. Bouwens, 166, 174. 
 v. Brackenbury, 340, 342. 
 v. Campbell. 161, 164, 165. 
 v. Chapman, 340. 
 Charlton v., 342. 
 v- Cleave, 9. 
 
 v. Cockerill, 159, 160, 171, 179. 
 Cullen v., 92, 93, 133, 334, 336. 
 v. Dardier, 210, 217, 258, 262, 
 
 419. 
 v. Dodd, 153. 
 
 v. Dunn, 158, 161, 162, 166. 
 v. Gell, 315. 
 Pisk v., 326. 
 
 v. Fitzjohn, 10, 164, 315. 
 V. Forbes, 161. 
 v. Giles, 405. 
 v. Holbrook, 347. 
 v. Holford, 340, 384. 
 v. Hope, 160, 171. 
 v. Hubbuck, 153. 
 v. Jackson. 161. 
 v. Littledale, 9. 
 v. Lyod, 144. 
 v. Mangles, 340* 
 
 Attorney General v. Middleton, 10, 
 57, 274, 315, 418. 
 v. Montifiore, 329, 330. 
 v. Munby, 340, 373, 392. 
 v. Napier, 57, 149, 158, 160, 
 
 161, 162, 166. 
 
 v. Pierce, 236, 319, 389. 
 
 v. Ramsay, 340. 
 
 v. Sefton, 210, 217, 262, 419. 
 
 v. Simcox, 340. 
 
 v. Upton, 312, 315, 342. 
 
 v. Wahlstatt, 158, 166. 
 
 v. Wallace, 66, 159, 160, 161, 
 
 162, 164, 167, 171, 191, 
 199. 200. 
 
 v. Yelverton, 208. 
 Avery's Est., 219, 407, 412, 413. 
 
 15 
 
 Bacon's Est., In re, 171, 173, 177, 
 
 199. 
 Badart, In re, 159, 164, 165. 
 Bailey v. Boult, 379. 
 
 v. Mason, 424. 
 Balleis' Est, In re, 116, 117, 118. 
 Baltimore v. R. R. Co., 173, 194. 
 Bank v. Sharp, 171, 177. 
 Banks v. Mayor, 60. 
 Banks' Est, In re, 390, 411, 413, 
 
 415, 423. 
 Bank Tax Cases, 60. 
 Barbier v. Connolly, 52. 
 Barksdaile v. Gilliat, 379. 
 Barringer v. Cowan, 94, 100, 104, 
 
 111. 
 Bartlett, In re, 346. 
 Bate v. Payne, 373, 382, 390, 392. 
 Beach v. Hollister, 228, 269, 284. 
 Bell's App. (Stewart's Est.), 408. 
 Bell's Gap R. Co. v. Penn., 37, 
 
 47, 68. 
 Beetson, Atty.-Gen. v., 159, 160, 
 
 171, 179. 
 Bemis v. Boston, 50.
 
 TABLE OF CASES. 
 
 643 
 
 [References are to Pages.] 
 
 Benet, In re, 213, 246, 288, 299, 
 
 303. 
 Benjamin, In re, 228, 246, 247, 
 
 255, 285, 288. 
 Biddle's Est., In re, 336. 
 Big Black Creek Co. v. Com., 242. 
 Bird, In re, 122, 142, 211, 217, 218, 
 
 227, 229, 261, 262, 369, 423. 
 Birkett, In re, 112. 
 Birtwhistle v. Vardill, 169, 195. 
 Bispham, In re, 266, 267, 379. 
 Bittinger's Est., In re, 15, 30, 44, 
 
 57, 65, 67, 135, 143, 146, 149, 150, 
 
 152, 167, 192, 194, 232, 317, 
 
 371, 377, 399, 412, 423. 
 Black, In re, 113. 
 Blake v. McCartney, 8, 275, 316, 
 
 418. 
 Bonaparte v. Tax Court, 50, 65, 
 
 146. 
 Bondon, In re, 58, 59, 168, 171, 
 
 172, 182. 
 Bowditch v. Ayrault, 153. 
 Boyd's Est., In re, 363, 372, 381, 
 
 382, 394, 410. 
 Boyle, Com. v., 135, 142, 212, 230. 
 Bradford v. Jones, 47. 
 Bradshaw, In re, 351. 
 Brenner, Com. v., 149. 
 Brettun v. Fox, 35. 
 Brewer's Est., In re, 243, 246, 
 
 247, 248, 262, 286, 299, 326, 329, 
 
 363, 376, 377, 399, 411, 412, 417. 
 Brewster, In re, 243, 299. 
 Brooks, In re, 80, 82, 121, 307, 
 
 312, 340, 422. 
 Brown v. Adv.-Gen., 336. 
 Bruce, In re., 161, 246, 248, 285, 
 287, 301, 303, 304. 
 v. Bruce, 149, 161, 195. 
 Brune v. Smith, 144, 275, 384, 
 
 393. 
 Budd's Est, In re, 265, 271, 272, 
 
 320. 
 Butler, In re, 122, 124, 127, 130, 
 
 271, 407, 408. 
 
 c 
 
 Cager, In re, 40, 82, 121, 134, 135, 
 
 136, 142, 191, 225, 228, 229, 243, 
 
 245, 247, 248, 255, 265, 276, 285, 
 
 287, 299, 304, 326, 378, 379, 420, 
 
 422. 
 Campbell, Atty.-Gen. v., 161, 164, 
 
 165. 
 Cahn, In re, 211. 
 Capdevielle, In re, 158, 166. 
 Capron, In re, 123, 124, 129. 
 Carpenter v. Penn., 7, 32, 55, 56, 
 
 61, 115, 135, 402, 418. 
 Carver's Est., In re, 41, 59, 60. 
 Catlin v. For. and Dom. Miss. 
 Soc, 97, 98. 
 v. Hull, 169, 173, 175, 180, 195. 
 v. Trustees Trin. Col., 79, 93, 
 94, 95, 97, 99, 102, 106, 
 112, 115, 116, 118, 155, 
 180, 352. 
 Central Trust Co. v. R. R. Co., 
 
 349, 386, 394. 
 Chambe v. Durfee, 34, 37, 46, 52, 
 
 389, 404. 
 Chardavoyne, In re, 80, 134, 420. 
 Charlton v. Atty.-Gen., 342. 
 Chase v. R. R. Co., 411. 
 Chatfield v. Berchtoldt, 149, 165, 
 
 168, 190. 
 Chittenden, In re, 94, 96, 97, 99, 
 
 101, 107. 
 Christian's Est., In re, 265, 266, 
 
 270. 
 Church Charity v. Peo., 97, 102, 
 
 113. 
 Church of St. Monica v. Mayor, 
 
 78, 84, 112. 
 Cigala, In re, 146, 149, 164, 166, 
 
 174, 175, 371. 
 Citizens' Bank v. Sharp, 171, 177. 
 City of Baltimore v. Baltimore 
 
 R. R. Co., 173. 
 Clapp v. Mason, 231, 274, 316, 
 
 410, 424.
 
 544 
 
 TABLE OF CASES. 
 
 [References are to Pages.] 
 
 Clark's Est, In re, 66, 134, 159, 
 160, 168, 175, 181, 191, 227, 228, 
 246, 247, 248, 250, 255, 256, 266, 
 268, 270, 271, 285, 301, 303, 304, 
 305, 360, 391. 
 Clymer v. Com., 31, 33, 60. 
 Clymer's Est., 133. 
 Coales, In re., 149, 162. 
 Cockerill, Atty.-Gen. v., 159, 160, 
 
 171, 179. 
 Cockey's Est., In re, 214, 256, 
 258, 271, 359, 360, 391, 397, 401. 
 Cogswell's Est., In re, 245, 246, 
 
 282, 285, 307, 418. 
 Coleman, People v., 50. 
 Coleman's Est., In re, 50, 150, 152, 
 154, 157, 173, 174, 177, 178, 190, 
 194, 196. 
 Colhoun, In re, 219, 221, 416, 417. 
 Com.'s App., 15, 173, 177, 178, 
 199, 200, 259, 265, 412. 
 (Avery's Est.). 407, 412, 413. 
 (Bittinger's Est.), 15, 30, 44, 
 57, 65, 67, 143, 146, 149, 
 150, 167, 192, 194, 232, 
 317, 371, 377, 399. 
 (Coleman's Est.), 177, 178, 324. 
 (Cooper's Est.), 57, 210, 218, 
 223, 226, 234, 235, 239, 
 241, 242, 262, 270, 272, 
 301, 304, 317, 318, 319, 
 320, 321, 322, 323, 324, 
 325, 423. 
 (Fagely's Est), 210, 235, 259, 
 262, 301, 318, 324, 362, 
 376, 377, 399, 412, 413, 
 415, 417, 423. 
 (Kerr's Est.), 385. 
 (Pepper's Est.), 384. 
 (Small's Est.), 16, 34, 41, 64, 
 65, 145, 146, 147, 150, 151, 
 152, 154, 157, 167, 174, 
 176, 179, 190, 194, 195, 
 385, 413. 
 Com. v. Bausman, 412, 413. 
 v. Boyle, 135, 142, 212, 230. 
 v. Brenner, 149. 
 
 Com. v. Chesapeake & Ohio R. R. r 
 
 171, 173. 
 Clymer v., 31, 33, 60. 
 v. Coleman, 16, 44, 152, 156, 
 
 157, 199, 201, 219, 262, 
 
 364, 369, 371, 372, 381, 
 
 403, 407. 
 v. Cooper, 272. 
 v. Duffield, 197. 
 v. Eckert, 235, 283. 319, 419. 
 v. Elbervale Coal Co., 412. 
 v. Ferguson, 121, 130, 131. 
 v. Freedley, 204, 205, 215, 217, 
 
 218, 241, 249, 258, 304, 
 
 306, 376, 399, 418. 
 v. Galbraith, 130. 
 Hackett v., 133, 335, 339. 
 v. Herman, 31, 33, 43, 61-94, 
 
 95, 100, 111. 
 v. Kerchner, 135, 142, 212. 
 
 317, 378, 379. 
 v. Kuhn, 329, 331. 
 v. Maury, 42. 
 Miller v., 17, 31, 44, 45, 67. 
 
 94, 100, 104, 111, 112, 152, 
 
 155. 
 v. Nancrede, 121, 123, 130. 
 
 131. 
 v. Powell, 123, 131. 
 Reish v., 329, 333, 334, 337. 
 v. Schumacher, 50-133, 339. 
 v. Sharpless, 50-133, 339. 
 v. Smith, 44, 55, 65, 67, 135, 
 
 149, 177, 179, 191, 235, 
 
 283, 318, 319. 343, 364, 
 
 369, 372, 378, 412, 419. 
 v. Standard Oil Co., 173, 424. 
 Stinger v., 212, 214, 216, 217, 
 
 258, 259, 262, 335, 347, 
 354. 
 
 Strode v., 7, 31, 33, 43, 51, 60, 
 199, 200, 201, 219, 258, 
 
 259, 354. 
 v. Stump, 130. 
 
 Tharp v., 121, 123, 130. 
 
 v. Toms, 362. 
 
 v. Williams, 133, 306, 339.
 
 TABLE OP CASES. 
 
 545 
 
 [References are to Pages.] 
 
 Comm. v. Pullen, 32, 43, 46, 55, 
 
 61. 
 Congregation Kal Israel v. City 
 
 of N. Y., 78, 107. 
 Conklin, In re, 127, 129. 
 Conwell's Est., In re, 329, 330, 
 
 334. 
 Cook's Est., In re, 371. 
 Cooper v. Com., 272, 317, 407. 
 v. Cooper, 153. 
 v. Trewby, 377, 405. 
 Cooper's Est., 57, 210, 218, 219, 
 
 223, 226, 234, 235, 239, 241, 242, 
 
 262, 301, 304, 317, 318, 319, 320, 
 
 321, 322, 323, 324, 325, 407, 412, 
 
 418, 428. 
 Coming's Est., In re, 34, 149, 150, 
 
 168, 174. 
 Cowley, Earl of, 223, 370, 380. 
 Coxe's App., 214, 329, 369. 
 Crane v. Mayor, 398. 
 Croinpton's Est., In re, 267. 
 Crosby, Est., In re, 338. 
 Cullom's Est., In re, 31, 34, 38, 
 
 41, 43, 62, 84, 116, 119. 
 Cullen v. Atty.-Gen., 92, 93, 133, 
 
 334, 336. 
 Cullen's Est., In re, 75, 219, 223, 
 
 236, 237, 260, 318, 325, 362, 363, 
 
 374, 377, 390, 406, 407. 
 Cumming's Est., In re, 379. 
 Cunningham's Est, In re, 249, 
 
 277, 278. 354, 415, 416, 417. 
 Curry v. Spencer, 32, 34, 46, 50. 
 Curtis' Est., In re, 3, 45, 94, 97, 
 
 102, 103, 154, 228, 245, 246, 248, 
 
 252, 255, 256, 268, 275, 277, 278, 
 
 283, 284, 285, 292, 297, 298, 299, 
 
 303, 310, 313, 343, 355, 371. 
 Custance v. Bradshaw, 149, 153, 
 
 162. 
 
 D 
 
 Da Costa, In re, 84, 99. 
 Dallinger v. Rapello, 58, 149. 
 law inher— 35 
 
 Dalrymple, State v., 31, 45, 47, 
 
 65, 135, 146, 148, 149, 159, 160, 
 
 107, 168, 170, 173, 175, 179, 187, 
 
 191, 195. 
 Daly v. Sanders, 410. 
 Davenport's App., 329, 331. 
 David, In re, 338. 
 Davidson v. N. O., 50. 
 Davis v. Crandall, 398. 
 Del Busto, Est., In re, 15, 16, 44, 
 
 171, 173, 175, 177, 190, 198, 199, 
 
 233, 235, 317, 318, 423. 
 Devlin, Est, In re, 113. 
 Dewey, Est., In re, 97, 105, 143, 
 152, 336, 371. 
 v. Supervisors, 202, 403. 
 Dobermiller, In re, 22, 37, 52, 
 
 422. 
 Doty's Est, In re, 231, 344. 
 Dowdney v. The Mayor, 405. 
 Drake v. Atty.-Gen., 340. 
 Drayton's App., 44, 152, 157, 197, 
 
 371. 
 Dreyer, In re, 215, 263. 
 Dreyfous, In re, 308, 420, 421. 
 DuBois' App., 329, 331. 
 Duckworth, In re, 168. 171, 173, 
 
 182. 
 Dugdale v. Meadows, 377, 405. 
 Dunlap v. Gallitin Co., 57, 387. 
 Dunwell v. Bidwell, 424. 
 
 E 
 
 Eastern Bank v. Com., 412. 
 
 Eaton's Est, In re, 358. 
 
 Edwards' Est, In re. 338, 339. 
 
 Ely v. Holton, 121, 420, 421. 
 
 Ennis v. Smith, 56. 
 
 Ensinau v. Directors of Poor, 326. 
 
 Enston's Will, In re. 45. 50, 65, 
 75, 104, 149, 160, 163, 166, 167, 
 168, 171, 173, 174, 175, 176, 177, 
 180, 190, 191, 193, 198, 199, 200, 
 202, 219, 360, 370, 372, 407.
 
 546 
 
 TABLE OF CASES. 
 
 [References are to Pages.] 
 
 Estates of, see "In re." 
 Evans, In re, 142, 317, 378. 
 Ewing, In re, 55, 56, 65, 149, 161, 
 
 174, 179. 
 Ex parte Franklin, 92. 
 
 Sitwell, 144, 275, 384. 
 Eyre v. Jacob, 17, 30, 31, 32, 34, 4Z, 
 
 45, 46, 50, 51, 65, 149, 389, 424. 
 
 F 
 
 Fagely's Est See "Appeal of 
 
 Com., In re." 
 Falls, In re, 402. 
 Farley, In re, 92, 93, 133, 211, 
 
 336, 356, 369, 372, 376, 395, 397. 
 Farquharson v. Nugent, 382. 
 layer weather's Est., In re, 74, 75, 
 
 99, 116, 118, 415. 
 Fenn, In re, 122, 130. 
 Ferrer, In re, 245, 258, 278, 401, 
 
 402, 415. 
 Fisher v. Brierly, 326, 379. 
 Fisk v. Atty.-Gen., 326. 
 Flanagan v. Flanagan, 286. 
 Fleming, In re, 246, 285, 287, 288, 
 
 304. 
 Floyd, In re, 212, 213, 217, 419. 
 Flynn's Est., In re, 81, 137, 140. 
 Folmer's App., 114. 
 Folsom v. U. S., 418. 
 Forbes, Atty.-Gen. v., 161. 
 
 v. Steven, 149, 153, 160, 162. 
 Forbes' Est., In re, 265, 270, 372, 
 
 379, 381, 382. 
 Foreign Bond Tax Cases, 170. 
 
 173, 174, 175, 177. 
 Forrester, In re, 74, 101, 102, 103, 
 
 108. 
 Forsyth, In re, 80, 82, 154. 
 Fosselman's App., 259, 263. 
 Foster v. Ley, 347, 373, 379, 382, 
 392. 
 v. Winfield, 154. 
 Fox v. Com., 17, 74, 75, 121, 423, 
 
 424. 
 Foy, In re, 119, 154. 
 
 Franklin, Ex parte, 92. 
 Frank's Est., In re, 393. 
 Frazer v. People, 211, 354, 359, 
 
 360, 369, 396, 397, 402. 
 Fredarickson v. Louisiana, 58. 
 Frowe, In re, 354. 
 Fryer v. Morehouse, 330. 
 
 G 
 
 Galbraith v. Com., 130. 
 Gardner's Est., In re, 122, 125. 
 Garman's Est, In re, 336. 
 Genet v. Hunt, 337. 
 Gibbons' Est, In re, 347. 
 Gilman's Est., In re, 355, 391. 
 Gilmore's Est, In re, 121, 130, 
 
 131. 
 Gilpin's Est., In re, 113. 
 Goldgart v. Peo., 173. 
 Goldstein's Est., In re, 210, 226, 
 
 227, 233, 258, 403, 423. 
 Gomez, In re, 307, 313. 
 Gooch v. Ass'n, 109. 
 Gorman v. State, 24, 25, 37, 40, 
 
 47, 70. 
 Gould's Est., In re, 201, 220, 221, 
 
 222, 343, 368. 
 Graham v. Bank, 195. 
 Green v. Croft, 9. 
 
 v. Van Buskirk, 169, 195. 
 Greville v. Greville, 382, 392. 
 Griffen v. Shephard, 280. 
 Griffiths, In re, 92. 
 Grover's Est., In re, 283, 285. 
 Gurr v. Scudds, 75. 
 
 H 
 
 Hackett v. Com., 133, 335, 339. 
 Hales v. Freeman, 373, 382, 392. 
 Hale's Est, In re, 44, 45, 67, 75, 
 
 156. 
 Hall's Est., In re, 40. 81, 134, 135, 
 
 137, 140, 202, 229, 317, 386, 387, 
 
 403, 404, 416.
 
 TABLE OF CASES. 
 
 547 
 
 [References are to Pages.] 
 
 Halsey, In re, 414. 
 Hamilton v. Dallas, 158, 166. 
 Hamilton Co. v. Mass., 61, 62. 
 Hamilton's Est, In re, 63, 84, 
 
 119, 256. 
 Harrison v. Willis, 47. 
 Hathaway v. Fish, 369. 374, 377, 
 
 378, 380. 
 Hauenstein v. Lynham, 58. 
 Haven's Est., In re, 93, 201, 222, 
 
 368. 
 Haynes v. Sherman, 287. 
 Healey v. Reed, 118. 
 Heine v. Comm., 405. 
 Helman v. U. S., 424. 
 Hendricks, In re, 121, 213, 331, 
 
 337, 418, 422. 
 Herman, Com. v., 95. 
 Herr's Will, In re, 95, 96, 97, 102, 
 
 103, 104, 112. 
 Hervey v. Locomotive Works, 
 
 169, 195. 
 Higgins, Est., In re, 228, 245, 246, 
 
 269, 282, 284, 301, 303, 329, 330. 
 Hilton v. Fonda, 67, 147. 
 Hoare v. Osborne, 112. 
 Hochster's Est, In re, 97, 102, 
 
 103, 107, 399. 
 Hoffman's Est., In re, 32, 34, 38, 
 
 40, 42, 80, 81, 82, 83, 134, 135, 
 
 137, 139, 140, 191, 212, 228, 229, 
 
 230, 245, 246, 248, 252, 255, 268, 
 
 277, 278, 279, 282, 283, 285, 288, 
 
 296, 303, 310, 313, 317, 343, 362, 
 
 378, 387, 402. 
 Hoghtaling's Est, In re, 415. 
 Holbrook's Est., In re, 135, 369, 
 
 378. 
 Holland v. Alcock, 113. 
 Home for Friendless v. Rouse, 
 
 94. 
 Hood's Est., 44, 152, 157, 158, 177, 
 
 197, 198, 199, 371. 
 Hope, Atty. Gen. v., 160, 171. 
 
 In re, 201, 222, 368, 416. 
 Hopkins, In re, 134, 228, 245, 246, 
 
 247, 266, 269, 271, 285, 287, 301, 
 
 804. 
 
 Horter's Est., In re, 135, 378, 379. 
 Howard, In re, 32, 42, 44, 45, 60, 
 
 61, 67, 134, 155, 202, 386, 403. 
 Howe, In re, 18, 40, 80, 82, 121, 
 
 134, 135, 136, 137, 191, 229, 364, 
 
 369, 378, 392, 419, 420, 421. 
 Howell's Est., 142, 143, 317, 378. 
 Hoyt v. Comm., 169, 170, 171, 175, 
 
 180, 195, 196. 
 Hughes, In re, 80, 122, 158, 421, 
 
 423. 
 Hulse, In re, 231, 347. 
 Hunter, In re, 97, 102, 113. 
 Hunter v. Husted, 369, 378, 382. 
 Hunt's Est., In re, 120, 123, 127, 
 
 132, 383. 
 Hurst v. Cemetery Ass'n, 113. 
 Hyde, In re, 343. 
 
 Inhabitants of Town of Essex 
 
 v. Brooks. (See Addenda.) 
 In re Acker, 416. 
 
 Alexander's Est., 55, 65, 160, 
 
 173, 177, 179. 
 Arnett, 121, 356, 357, 358, 359, 
 
 376, 395, 397, 400, 420, 
 422, 423. 
 
 Astor, 201, 209, 211, 212, 213, 
 214, 215, 218, 258, 263, 
 354, 355, 356, 360, 368, 
 
 377, 386, 394, 395, 396, 
 398, 399, 400, 401, 406. 
 
 Bacon's Est, 171, 173, 177, 
 
 199. 
 Badart, 159, 164, 165. 
 Balleis' Est., 116, 117, 118. 
 Bank's Est., 390, 411, 412, 413, 
 
 415, 423. 
 Bartlett, 346. 
 Benet's Est., 213, 246, 288, 
 
 299, 303. 
 Benjamin, 228, 246, 247, 255, 
 
 285, 288. 
 Biddle's Est, 336.
 
 548 
 
 TABLE OF CASES. 
 
 [References are to Pages.] 
 
 In re Bird's Est., 122, 142, 211, 217, 
 218, 227, 229, 261, 262, 
 369, 423. 
 
 Birkett, 112. 
 
 Bisphana's Est., 266, 267, 379. 
 
 Bittiuger's Est., 15, 30, 44, 57, 
 65, 67, 143, 146, 149, 150, 
 152, 167, 192, 194, 232, 
 317, 371, 377, 399. 
 
 Black's Est, 113. 
 
 Bondon, 58, 59, 168, 171, 172, 
 182. 
 
 Boyd's Est., 363, 372, 381, 382, 
 394, 410. 
 
 Bradshaw, 351. 
 
 Brewer's Est., 243, 246, 247, 
 248, 262, 286, 299, 326, 
 329, 363, 376, 377, 399, 
 411, 412, 417. 
 
 Brewster, 243, 299. 
 
 Brook's Est., 80, 82, 121, 307, 
 312, 340, 422. 
 
 Bruce, 161, 246, 248, 285, 287, 
 301, 303, 304. 
 
 Budd's Est., 265, 271, 272, 320. 
 
 Butler, 122, 124, 127, 130, 271, 
 407, 408. 
 
 Cager's Will, 40, 82, 121, 134, 
 135, 136, 142, 191, 225, 
 228, 229, 243, 245, 247, 
 248, 255, 265, 276, 285, 
 287, 299, 304, 326, 378, 
 379, 420, 422. 
 
 Calm, 211. 
 
 Capdevielle, 158, 166. 
 
 Capron, 123, 124, 129. 
 
 Carver's Est., 41, 59, 60. 
 
 Chardavoyne, 80, 134, 420. 
 
 Chittenden, 94, 96, 97, 99, 101, 
 107. 
 
 Christian's Est, 265, 266, 270. 
 
 Cigala, 146, 149, 164, 166, 174, 
 175, 371. 
 
 Clark's Est., 66, 134, 159, 160, 
 168, 175, 181, 191, 227, 
 228, 246, 247, 248, 250, 
 
 255, 256, 266, 268, 271, 
 285, 299, 301, 303, 304, 
 305, 360, 391. 
 In re Clyrner's Est., 133. 
 
 Coale's Est., 149, 162. 
 
 Cockey's Est., 214, 256, 258, 
 271, 356, 359, 360, 391, 
 397, 401. 
 
 Cogswell, 245, 246, 282, 285, 
 307, 418. 
 
 Coleman's Est., 50, 150, 152, 
 154, 157, 173, 174, 177, 
 178, 190, 194, 195, 324. 
 
 Colhoun, 219, 221, 416, 417. 
 
 Conklin's Est., 127, 129. 
 
 Conwell's Est., 329, 330, 334. 
 
 Cook's Est., 371. 
 
 Cooper's Est, 57,210, 218,219, 
 223, 220, 234, 235, 239, 
 241, 242, 262, 270, 272, 
 301, 304, 317, 318, 319, 
 320, 321, 322, 323, 324, 
 325, 407, 412, 418. 
 
 Coming's Est., 34, 149, 150, 
 168, 174. 
 
 Cowley, Earl, 223, 370, 380. 
 
 Crompton, 267. 
 
 Crosby, 338. 
 
 Cullen's Est, 75, 219, 223, 
 236, 237, 260, 318, 325, 
 362, 363, 374, 377, 390, 
 107. 
 
 Cullom, 31, 34, 38, 41, 43, 62, 
 84, 116, 119. 
 
 Cumming's Est, 379, 415, 416, 
 417. 
 
 Cunningham, 249, 277, 278, 
 354. 
 
 Curtis, 3, 45, 94, 97, 102, 103, 
 154, 228, 245, 246, 248, 
 252, 255, 256, 268, 275, 
 277, 278, 283, 284, 285, 
 292, 296, 297, 298, 299, 
 303, 310, 313, 343, 355, 
 371. 
 
 Da Costa, 84, 99.
 
 TABLE OF CASES. 
 
 649 
 
 [References are to Pages.] 
 
 In re David, S38. 
 
 Del Busto's Est., 15, 16, 44, 
 
 171, 173, 175, 177, 190, 
 
 108, 100, 1233, 235, 317, 
 
 318, 412, 423. 
 Devlin's Est, 113. 
 Dewey's Est., 97, 105, 143, 
 
 152, 336, 371. 
 Dobermiller, 22, 37, 52, 422. 
 Doty's Est., 231, 344. 
 Dreyer, 215, 263. 
 Dreyfous, 308, 420, 421. 
 Duckworth, 168, 171, 173, 182. 
 Eaton's Est., 358. 
 Edward's Est, 338, 339. 
 Enston's Will, 45, 50, 65, 75, 
 
 104, 149, 160, 163, 166, 
 
 167, 168, 171, 173, 174, 
 
 175, 176, 177, 180, 100, 
 
 191, 193, 198, 199, 200, 
 
 202, 219, 360, 370, 372, 
 
 407. 
 Evans, 142, 317, 378. 
 Ewing, 55, 56, 65, 149, 161, 
 
 174, 179. 
 Fagely's Est., 210, 235, 259, 
 
 262, 301, 318, 324, 363, 
 
 376, 399, 412, 413, 415, 
 
 417, 423. 
 Falls, 402. 
 Farley, 92, 93, ±33, 211, 336, 
 
 356, 369, 372, 376, 395, 
 
 397. 
 Fayerweather, 74, 75, 99. 116, 
 
 118, 415. 
 Fenn, 122, 130. 
 Ferrer, 245, 258, 278, 401, 402, 
 
 415. 
 Fleming, 246, 285, 287, 288, 
 
 304. 
 Floyd, 212, 213, 217, 419. 
 Flynn's Est., 81, 137, 140. 
 Forbes' Est., 265, 270, 372, 
 
 379, 381, 382. 
 Forrester, 74, 101, 102, 103, 
 
 108. 
 Forsyth, 80, 82, 314. 
 
 In re Fox, 119, 154. 
 Frank's Est., 393. 
 Frowe, 354. 
 Gardner, 122, 125. 
 Garman's Est. 336. 
 Gibbons' Est., 347. 
 Gilman's Est., 355, 391. 
 Gilmore's Est., 121, 130, 131. 
 Gilpin's Est., 113. 
 Goldstein's Est., 210, 226, 
 
 227, 233, 258, 403, 423. 
 Gomez, 307, 313. 
 
 Gould, 201, 220, 221, 222, 343, 
 
 368. 
 Griffiths, 92. 
 Grover's Est, 283, 285. 
 Hale's Est., 44, 45, 67, 75, 156. 
 Hall's Est, 40, 81, 134, 135, 
 
 137, 140, 202, 229, 317, 
 
 386, 387, 403, 404, 416. 
 Halsey, 414. 
 Hamilton's Est., 63, 84, 119, 
 
 256. 
 Haven's Est., 93, 201, 222, 
 
 368. 
 Hendricks, 121, 213, 331, 337, 
 
 418, 422. 
 Herr's Will, 95, 96, 97, 102, 
 
 103, 104, 112. 
 Higgins, 228, 245, 246, 269, 
 
 282, 284, 301, 303, 329, 
 
 330. 
 Hochster, 97, 102, 103, 107, 
 
 399. 
 Hoffman's Est., 32, 34, 38, 40, 
 
 42, SO, 81, 82, 83, 134, 135, 
 
 137, 139, 140, 191, 212, 
 
 228, 229, 230, 245, 246, 
 248, 252, 255, 268, 277, 
 27S. 279, 282, 283, 285, 
 288. 296, 303, 310, 313, 
 317. 343, 362, 378, 387, 
 402. 
 
 Hoghtaling, 415. 
 Holbrook's Est., 135, 369, 378. 
 Hood's Est, 44, 152, 157, 158, 
 177, 197, 198, 199, 37L
 
 550 
 
 TABLE OF CASES. 
 
 [References are to Pages.] 
 
 In re Hope, 201, 222, 368, 416. 
 
 Hopkins, 134, 228, 245, 246, 
 
 247, 266, 269, 271, 285, 
 
 287, 301, 304. 
 Horter's Est, 135, 378, 379. 
 Howard, 32, 42, 44, 45, 60, 61, 
 
 67, 134, 155, 202, 386, 403. 
 Howe, 18, 40, 80, 82, 121, 134, 
 
 135, 136, 137, 191, 224, 
 
 364, 369, 378, 392, 419, 
 
 420, 421. 
 Howell's Est, 142, 143, 317, 
 
 378. 
 Huey's Est., 335. 
 Hughes, 80, 122, 158, 421, 423. 
 Hulse, 231, 347. 
 Hunter, 97, 102, 113. 
 Hunt's Est, 120, 123, 127, 132, 
 
 383. 
 Hyde, 343. 
 James, 19, 50, 66, 116, 146, 
 
 147, 148, 160, 163, 166, 
 
 167, 168, 169, 173, 174, 
 
 175, 182, 184, 191, 194, 
 
 282, 325, 370, 372. 
 Jenkinson, 208. 
 Johnson, 227, 250, 255, 265, 
 
 266, 270, 271, 302, 328, 
 
 329, 337, 342. 
 Jones' Est., 113, 132, 135, 209, 
 
 211, 212, 213, 218, 263, 
 
 356, 359, 362, 369, 389, 
 
 391, 394. 
 Kaas' Est., 210. 212, 213, 219, 
 
 226, 227, 233. 
 Kavanagh's Est., 106. 
 Keech's Est., 94, 97, 98, 101, 
 
 102, 103, 104, 107, 109, 
 
 356, 382, 403. 
 Keenan, 217, 258, 262, 263, 
 
 354, 362, 377, 394, 400, 
 
 406, 410, 411, 417. 
 Keith's Est., 95, 103, 106, 354, 
 
 362. 
 Kemeys, 80, 121, 122, 355, 419, 
 
 420, 421, 422, 423. 
 
 In re Kene, 219, 381. 
 
 Kennedy's Est., 97, 106, 130. 
 
 Kerr's Est., 385. 
 
 King's Est., 142, 343, 364, 
 
 372, 379, 412, 419. 
 Kingston's Est., 144. 
 Kissam, 422. 
 Knoedler. Est., 41, 114, 208, 
 
 214, 260, 263. 
 Langham, 377, 405. 
 Leavitt, 218, 227, 246, 247, 
 
 248, 255, 266, 270, 271, 
 
 287, 299, 302. 
 Lederer, 217. 
 Le Fever, 228, 245, 246, 269, 
 
 282, 285, 286, 288, 301, 
 
 303, 304, 392. 
 Lenox's Est, 79, 94, 96, 97, 
 
 98, 100, 102, 105, 107, 
 
 109, 112, 369, 376, 399. 
 Lewis, 256, 258, 401. 
 Line's Est., 149, 150, 151, 222, 
 
 224, 235, 239, 323, 324, 
 
 329, 331, 332, 337. 
 Livingston, 343. 
 Loekwood, 380. 
 Lord, 285. 
 Lovelace, 159, 163, 164, 199, 
 
 337. 
 Ludlow's Est, 59, 60, 137, 
 
 201, 220, 221, 230, 231, 
 
 368. 
 McCarthy, 360, 361, 402. 
 McCormick's Est, 335. 
 McCoskey, 115. 
 McCready, 134. 
 McGarvey, 132. 
 McGeary's Est., 237, 239, 241, 
 
 242, 246, 259, 320, 321, 
 
 325. 
 McGowan's Est, 211, 213, 
 
 214, 229, 263, 354. 
 McKean's Est., 204, 205, 216, 
 
 217, 411, 412, 413, 415. 
 McLean, 203. 
 McMahon, 202.
 
 TABLE OF CASES. 
 
 551 
 
 [References are to Pages.] 
 
 In re McPherson, 7, 14, 30, 31, 42, 
 44, 45, 51, .".2, 53, 71, 101, 
 104, 167, 182, 186, 192, 
 214, 216, 256, 258, 203, 
 276, 349, 354, 355, 356, 
 359, 369, 373, 376, 377, 
 386, 391, 392, 394, 398, 
 400, 401, 402. 
 
 Mann, 383. 
 
 Maris' Est, 332, 390, 413. 
 
 Martin's Est, 409, 411. 
 
 Matthews' Est., 213, 246, 256, 
 288, 299, 303. 
 
 Merriam's Est, 31, 34, 38,41, 
 43, 62, 63, 64, 84, 116, 
 
 119, 149, 150, 180. 
 Meyers, 201, 222, 231, 343, 307. 
 Micklewait, 329, 330. 
 Miller, 95, 97, 102, 104, 112, 
 
 120, 121, 130, 132, 134, 
 142, 217, 258, 266, 307, 
 343, 355, 359, 400, 401, 
 418, 420, 421, 422. 
 
 Millward's Est, 137, 201, 220, 
 221, 222, 228, 247, 254, 
 
 269, 285, 287, 295, 290, 
 
 368. 
 Milne, 416. 
 Minturn, 84, 94, 97, 106, 107, 
 
 300, 303, 374, 375, 391, 
 
 402, 423. 
 Mixter's Est., 142, 143, 317, 
 
 378. 
 Morejon, 168, 171, 173, 182. 
 Morris' Est., 209. 
 Moulton, 123, 120. 
 Murphy's Est., 93, 135, 337, 
 
 309, 378. 
 Murray, 209, 362. 
 Neale's Est, 102. 
 New York Lake Erie R. R. 
 
 Co., 386, 395. 
 Nieman's Est., 235, 242, 246, 
 
 247, 248, 265, 283, 285, 
 
 299, 304, 320. 
 North Canal St Road, 424. 
 
 In re Noyes, 78. 98, 107, 115. 
 O'Sullivan, 212. 
 Packard's App., 121. 
 Palmer's Est., 374. 
 Parker, 92, 106. 
 Park's Est., 350, 351, 352, 404. 
 Pearsall, 356, 401. 
 Peck's Est., 141, 211, 229, 255, 
 
 266, 271, 301, 369. 
 Pelton's Est., 355, 391. 
 Pepper's Est., 384. 
 Perkins, 365. 
 Phelp's Est, 402. 
 Philbrick's Trust, 380. 
 Phipps, 06, 148, 150, 100, 168, 
 
 169, 171, 173, 175, 180, 
 
 182, 183, 187, 191, 194, 
 
 195. 197, 370. 
 Pinckney, 217, 218, 221. 
 Piatt's Est, 412, 415. 
 Pond, 142, 211, 229, 360. 
 Prime, 84, 93, 94, 100, 107, 
 
 110, 117, 118, 421, 423. 
 Prout, 355, 356, 391, 401, 411, 
 
 413, 414. 
 Province's Estate. (See Ad- 
 denda.) 
 Purroy, 249, 411, 415, 417. 
 Quinn, 97, 101, 344. 
 Raymond, 45, 154, 231, 392. 
 Reilly's Est., 231, 344, 367. 
 Redroth's Will, 326. 
 Richards, 93, 115. 
 Richardson, 308, 346, 367, 421. 
 Riddle's Est., 329, 331, 337. 
 Robertson. 134, 212, 224, 244, 
 
 276, 303. 
 Rogers, 344. 
 Romaine, 32, 66, 146, 147, 148, 
 
 160, 163, 166, 167, 168, 
 
 169, 171, 173, 174, 175, 
 
 176, 179, 181, 182, 184, 
 
 186, 191, 192, 195, 196, 
 
 370, 372. 
 Roosevelt, 228, 246, 24S, 252, 
 
 255, 268, 278, 279, 284,
 
 552 
 
 TABLE OF CASES. 
 
 [References are to Pages.] 
 
 285, 288, 290, 296, 298, 
 303, 310, 313, 338, 343, 
 414. 
 In re Rowsell, 115. 
 
 Rubicams Est., 219, 407. 
 
 Russak, 219, 221. 
 
 Russell's Est., 218, 259. 
 
 Ryan, 12, 121, 422. 
 
 Sammon, 373, 382, 390, 392. 
 
 Sauter, 257. 
 
 Seaman, 32, 38, 80, 228, 248, 
 254, 275, 280, 282, 285, 
 288, 304, 307, 308, 309, 
 352, addenda. 
 
 Secor's Est, 45, 154. 
 
 Shaw, 422. 
 
 Sherwell's Est., 30, 32, 34, 37, 
 41, 42, 43, 45, 48, 68, 69, 
 80, 134, 135, 142, 192, 229, 
 230, 379. 
 
 Short's Est, 32, 33, 55, 65, 
 135, 146, 149, 177, 179, 
 198, 199, 418. 
 
 Sidell, 201, 222, 231, 343, 366, 
 367. 
 
 Skidmore, 257. 
 
 Skillinan's Est., 81, 82, 378. 
 
 Sloane, 416. 
 
 Small's Est., 16, 34, 41, 64, 65, 
 145, 146, 147, 152, 154, 
 157, 167, 174, 176, 179, 
 190, 194, 196, 385, 413. 
 
 Smith's Est., 16, 116, 118, 132, 
 134, 147, 204, 205, 215, 
 256, 259, 260, 261, 350, 
 354, 358, 376, 377, 398, 
 399. 
 
 Smith's Will, 164. 
 
 Somerville, 211, 212. 
 
 Spencer, 122, 124, 125, 127, 
 129, 130, 422. 
 
 Spies, 266, 267. 
 
 Stacey, 174. 
 
 Stanford, 216, 245, 249, 250. 
 
 Stanton's Est, 149, 150, 151. 
 
 Sterling's Est., 81, 135, 140, 
 229, 378, 421. 
 
 In re Stewart, 75, 215, 217, 228, 246, 
 247, 248, 250, 255, 256, 
 260, 277, 278, 285, 287, 
 303, 304, 305, 306, 312, 
 341, 413, 415, 417, 419. 
 
 Stewart (Bell's App.), 408. 
 
 Stiger, 74, 143, 155, 217. 
 
 Stiles' Est, 245. 
 
 Stilwell's Est, 120, 127, 129, 
 275. 
 
 Strong, 50, 149, 150, 151, 166, 
 187. 
 
 Stucke, 360, 402. 
 
 Surrogate Cayuga Co., 285. 
 
 Swann's Est., Ill, 399. 
 
 Sweetland's Est., 125, 129. 
 
 Swift, 31, 34, 38, 41, 42, 44, 
 45, 59, 62, 65, 66, 67, 93, 
 135, 143, 147, 149, 150, 
 151, 152, 154, 187, 190, 
 191, 201, 212, 216, 220, 
 266, 267, 342, 368, 370, 
 371, 379, 380. 
 
 Taylor's Est., 81, 116, 118, 
 137, 140, 143. 
 
 Thomas, 34, 122, 124, 129, 
 150, 168, 180, 187, 191, 
 197, 422, 423. 
 
 Thompson, 80, 107, 121, 134, 
 135, 270, 422. 
 
 Thomson's Est., 97, 265, 266, 
 270, 329, 331, 369, 378. 
 
 Thorne, 122, 423. 
 
 Tobias, 280, 284, 307, 310, 312, 
 314, 340. 
 
 Tootals Trust, 158, 166, 197, 
 199. 
 
 Tuigg's Est., 41, 59, 61, 66, 
 107, 115, 116, 343, 347. 
 
 Tulane, 163, 171, 177, 180, 
 190, 191, 193, 195, 199, 
 370. 
 
 Ullmann, 204, 205, 214, 350, 
 351, 352, 355, 395. 
 
 Underbill, 80, 344. 356, 367, 
 382. 
 
 Van Bueren, 266, 267, 380.
 
 TAIILE OF CASKS. 
 
 553 
 
 [References are to Pages.] 
 
 In re Vanderbilt, 7, 60, 78, 79, 84, 
 97, 98, 99, 101, 105, 106, 
 107, 109, 112, 115, 141, 
 213, 214, 258, 262, 263, 
 355, 356, 358, 359, 363, 
 369, 375, 377, 382, 391, 
 392, 395, 396, 397, 398, 
 399, 406, 417. 
 
 Van Kleeck, 60, 84, 94, 95, 07, 
 106, 112, 423. 
 
 Van Rensselaer, 245, 282, 303. 
 
 Vassar, 75, 78, 84, 93, 94, 
 96, 97, 98, 99, 100, 104, 
 105, 107, 108, 112, 201, 
 217, 221, 222, 227, 266, 
 281, 283, 368, 387, 413. 
 
 Vinot's Est., 66, 113, 160, 168, 
 175, 181, 191, 195, 245, 
 2S2. 
 
 Vogel's Est., 114. 
 
 Wagner's Est, 357, 359, 397. 
 
 Wallace, 213, 246, 248, 250, 
 256, 285, 287, 304. 305. 
 
 Waller's Est., 94. 
 
 Wallop's Trust, 159, 163, 164, 
 199, 250. 
 
 Walsh, 392, 393. 
 
 Walter's Est., 112. 
 
 Wayne's Est, 123, 130, 423. 
 
 Weaver's Est., 16, 150, 151, 
 180, 187, 194, 197. 
 
 Weed's Est., 189, 366, 383. 
 
 Westeott's Est., 296. 
 
 Wharton's Est., 130, 226, 265, 
 270, 271, 272, 273, 301, 
 320, 327, 412. 
 
 Wheeler's Est., 45, 125, 127, 
 129, 137, 154, 155, 210, 
 246, 252, 254, 285, 296, 
 366. 
 
 Wilkes' Est, 263. 
 
 Wilkins' Est.. 303. 
 
 Wilkinson's Est, 92, 373.378, 
 390, 392. 
 
 Williamson's Est., 44, 45, 67, 
 153, 155, 206, 219, 242, 
 266, 324, 347, 419. 
 
 In re Willing's Est., 235, 239, 241, 
 265, 269, 271, 272, 301, 
 318, 320, 321, 409. 
 
 Wolfe's Est., 18, 44, 143, 152, 
 201, 205, 211, 214, 215, 
 256, 260, 308, 350, 354, 
 355, 356, 358, 359, 386, 
 395, 396, 401. 
 
 Woolsey, 131, 132. 
 
 Wright, 270, 344, 346. 
 
 Jackson, Atty. Gen. v., 161. 
 
 v. Davenport, 305, 312, 340, 
 341. 
 James' App., 235, 236, 237, 260, 
 
 318, 319, 320, 325, 374, 377, 390, 
 
 407, 412, 419. 
 James, In re, 19, 50, 66, 116, 146, 
 
 147, 148, 160, 163, 166, 167, 168, 
 
 169, 171, 173, 174, 175, 182, 184, 
 
 191, 194, 282, 325, 370, 372, 374, 
 
 377, 419. 
 Jaudon v. Hayes, 283. 
 Jenkinson, In re, 208. 
 Johnson, In re, 227, 250, 255, 265, 
 
 266, 270, 271, 302, 328, 329, 337, 
 
 342. 
 Jones' Est, In re, 113, 132, 135, 
 
 209, 211, 212, 213, 218, 263, 356, 
 
 359, 362, 369, 389, 391, 394. 
 
 K 
 
 Kaas' Est, In re, 210, 212, 213, 
 
 219, 226, 227, 233. 
 Kavanagh, In re, 106. 
 Keech, In re, 94, 97, 98, 101, 102, 
 
 103, 104, 107, 109, 356, 382, 403. 
 Keenan's Est., In re, 217, 258, 
 
 262, 263, 354, 362, 377, 394, 400, 
 
 406, 410, 411, 417. 
 Keith and Dailey, In re, 95, 103, 
 
 106, 354, 362. 
 Keith's Est, 95, 103, 106.
 
 554 
 
 TABLE OF CASES. 
 
 [References are to Pages.] 
 
 Kemey's Est, In re, 80, 121, 122, 
 
 355, 419, 420, 421, 422, 423. 
 Kene, In re, 219, 381. 
 Kennedy's Est., In re, 97, 106, 
 
 130. 
 Kentucky R. R. Tax Cases, 52. 
 Kerchner, Com. v., 135, 142, 212, 
 
 317, 378, 379. 
 Kerr's Est., In re, 385. 
 Kilderbee v. Ambrose, 394. 
 King's Est., 142, 343, 364, 372, 
 
 379, 412, 419. 
 Kingston's Est., In re, 144. 
 Kintzing v. Hutchinson, 44, 67, 
 
 148, 152, 173, 174, 175, 176, 177, 
 
 179, 193, 316, 370, 371. 
 Kirkland v. Hotchkiss, 30, 172, 
 
 173. 
 Kissam, In re, 422. 
 Kissam v. People, 121. 
 Knoedler's Est, In re, 41, 114, 
 
 208, 214, 260, 263. 
 Knox v. Baldwin, 423. 
 Kortright v. Blunt, 410. 
 Kuhn, Com. v., 329, 331. 
 
 Langiham, In re, 377, 405. 
 Large v. McClain, 382, 394, 410. 
 Lathers v. Keogh, 405. 
 Latless v. Holmes, 419. 
 Latrobe v. Baltimore, 173. 
 Lawrence v. Kitteredge, 57. 
 Leavitt, In re, 218, 227, 246, 247, 
 
 248, 255, 266, 270, 271, 287, 299, 
 
 302. 
 Lederer, In re, 217. 
 Le Fever, In re, 228, 245, 246, 
 
 269, 282, 285, 286, 288, 301, 303, 
 
 304, 392. 
 Lenox, In re, 79, 94, 96, 97, 98, 
 
 100, 102, 105, 107, 109, 112, 309, 
 
 376, 399. 
 Lewis, In re, 256, 258, 401. 
 Lewis v. Woodford, 169, 195. 
 
 Line's Est., In re, 149, 150, 151, 
 
 222, 224, 235, 239, 323, 324, 329, 
 
 331, 332, 337. 
 Livingstone, In re, 343. 
 
 v. Murray, 287. 
 Lockwood v. Carr, 398. 
 
 In re, 380. 
 Lord, In re, 285. 
 Lord Adv. v. McDonald, 273. 
 Lord Adv., Macfarlane v., 381. 
 Lorillard v. Peo., 143, 152. 
 Louisiana v. Peydras, 134. 
 Louisville v. Gaines, 74. 
 Lovelace, In re, 159, 163, 164, 199, 
 
 337. 
 Ludlow's Est., In re, 59, 60, 137, 
 
 201, 220, 221, 230, 231, 368. 
 Lyall v. Lyall, 160, 164, 165. 
 
 M 
 
 McCarthy, In re, 360, 361, 402. 
 
 McCormick's Est, 335. 
 
 McCoskey, In re, 115. 
 
 McCready, In re, 134. 
 
 McCulloch v. Maryland, 30, 60. 
 
 McDonald, Lord Adv. v., 273. 
 v. Mass. Hosp., 109. 
 
 McDowell v. Addoms, 133. 
 
 Macfarlane v. Lord Adv., 381. 
 
 McGaryey, In re, 132. 
 
 McGeary's Est., In re, 237, 239, 
 241, 242, 246, 259, 320, 321, 325. 
 
 McGowan's Est., In re, 211, 213, 
 214, 229, 263, 354. 
 
 McKean's Est, In re, 204, 205, 
 216, 217, 411, 412, 413. 415. 
 
 McKeen v. Northampton, 149. 
 
 McLean, In re, 203. 
 v. Brown, 397. 
 
 McMahon, In re, 202. 
 
 McPherson, In re, 7, 14, 30, 31, 42, 
 44. 45, 51, 52, 53, 71, 101, 104, 
 167, 182, 186, 192. 214, 216, 256, 
 258, 263, 276. 349, 354, 355, 356, 
 359, 369, 373, 376, 377, 3S6, 391, 
 392, 394, 398, 400, 401, 402.
 
 TABLE OF CASES. 
 
 555 
 
 [References are to Pages.] 
 
 McVean v. Sheldon, 352. 
 
 Mager v. Grirna, 31, 33, 35, 58, 61, 
 64, 149. 
 
 Mann, In re, 383. 
 
 Maris' Est., In re, 332, 390, 413. 
 
 Martin's Est., In re, 409, 411. 
 
 Mason v. Sergeant, 231, 274, 310, 
 410, 424. 
 
 Matthews, In re, 213, 246, 256, 
 288, 299, 303. 
 
 May v. Slack, 424. 
 
 Mayor v. Baltimore, 168, 194. 
 
 Mellon's App., 219, 233, 235, 236, 
 237, 240, 241, 242, 246, 260, 272, 
 301, 304, 318, 319, 320, 321, 323, 
 325, 326, 377, 407, 409, 411, 412, 
 413. 
 
 Merkle v. Hennepin Co., 37, 389, 
 404. 
 
 Merriam's Est., In re, 31, 34, 38, 
 41, 43, 62, 63, 64, 84, 116, 119, 
 149, 150, 186. 
 
 Meyer's Est, 201, 222, 231, 243, 
 367. 
 
 Michigan Cent. R. R. v. Col- 
 lector, 173. 
 
 Micklewait, In re, 329, 330. 
 
 Miller, In re, 95, 97, 102, 104, 112, 
 120, 121, 130, 132, 134, 142, 217, 
 258, 266, 307, 343, 355, 359, 400, 
 
 401, 418, 420, 421, 422. 
 Miller v. Com., 17, 31, 44, 45, 67, 
 
 94, 100, 104, 111, 112, 152, 
 155. 
 v. Peo., 143. 
 Millward's Est., In re, 137, 201, 
 220, 221, 222, 228, 247, 254, 269, 
 285, 287, 295, 296, 368. 
 Milne, In re, 416. 
 Minot v. Winthrop, 22, 32, 34, 
 35, 40, 43, 44, 46, 69, 88, 116, 118, 
 141, 226, 267, 273, 327. 
 Minturn's Est., In re, 84, 94, 97. 
 106, 107, 360, 363, 374, 375, 391, 
 
 402, 423. 
 
 Mixter's Est., 142, 143, 317, 378. 
 Montague v. State, 45, 54, 55, 
 362, 369, 377, 382, 387, 389, 391. 
 
 Morejon, In re, 168, 171, 173, 182. 
 Morris' Est., In re, 269. 
 Moulton's Est., In re, 123, 126. 
 Moye v. May, 169. 
 Murphy's Est, 93, 135, 337, 369, 
 
 378. 
 Murray, In re., 209, 362. 
 
 N 
 
 Nancrede, Com. v., 121, 123, 130, 
 
 131. 
 Nash v. Bank, 423, 
 Neale's Est., In re, 102. 
 Newell v. Newell, 269, 284. 
 New Orleans v. Stewart's Est., 
 
 134. 
 New York Inf. Asyl. v. Super- 
 visors, 102. 
 New York Lake E. R. R. Co., 
 
 In re, 386, 395. 
 New York, L. E. R. R. v. Penn., 
 
 175. 
 Nieman's Est, In re, 235, 242, 
 
 246, 247, 248, 265, 283, 285, 299, 
 
 304, 326. 
 Northampton Co. v. Lafeyette 
 
 Col., 100, 105, 109, 111. 
 North Canal St. Road, In re, 
 
 424. 
 Northern Ind. R. R. v. Connelly, 
 
 48. 
 Noyes' Est, In re, 78, 98, 107, 115. 
 
 O 
 
 O'Connor v. McMahon, 228, 269, 
 284. 
 
 Oldfield v. Preston, 208. 
 
 Orcutt's App., 55, 149, 151, 166, 
 171, 173, 174, 175, 176, 190, 191, 
 194, 197, 199, 219, 333, 407. 
 
 Osgood v. Maguire, 174, 175. 
 
 Ostell's Case, 202. 
 
 O'Sullivan's Est, 212. 
 
 Owings v. State, 366, 392.
 
 556 
 
 TABLE OF CASES. 
 
 [References are to Pages.] 
 
 Packard's App., 121, 123. 
 
 Page v. Rives, 144, 275, 384, 393. 
 
 Palmer's Est., In re, 374. 
 
 Panter's Case, 419. 
 
 Parker, In re, 92, 106. 
 
 Talk's Est., In re, 350, 351, 352, 
 
 404. 
 Parsons v. Lyman, 187. 
 Pearsall's Est., 356, 401. 
 Peck, In re, 141, 211, 229, 255, 
 
 266, 271, 301, 369. 
 Pelton's Est., In re, 355, 391. 
 Pepper's Est., In re, 384. 
 People v. Barber, 94, 107, 218. 
 
 v. Barker, 148, 175, 198, 204. 
 
 v. Board Sup'rs, 99. 
 
 v. Cassity, 99. 
 
 v. Coleman, 50, 97, 115, 116, 
 148, 170, 175, 195, 198. 
 
 v. Colllson, 74. 
 
 v. Com'rs of Taxes, 55, 83, 94, 
 95, 102, 103, 112, 148, 149, 
 183, 186, 309. 
 
 v. Davenport, 74. 
 
 v. Fire Ass'n, 115. 
 
 v. Gardner, 148, 175. 
 
 v. Gilon, 214. 
 
 v. Hicks, 204. 
 
 v. Home Ins. Co., 62. 
 
 v. Long Island City, 74. 
 
 v. McLean, 115. 
 
 v. Mayor of Brooklyn, 51, 53. 
 
 v. Purdy, 99, 110. 
 
 v. Roper, 74. 
 
 v. Smith, 148. 
 
 v. Supervisors, 67, 99, 147, 
 423. 
 
 v. Tax Com'rs, 60, 183, 186. 
 
 V. Wemple, 62, 403. 
 Perkins' Est., 365. 
 Peters v. Lynchburg, 32, 46, 72. 
 Petroleum Co. v. Lacey, 103. 
 Phelps' Est, 402. 
 Phila. v. Woman's Ch. Ass'n, 71, 
 85, 100, 105, 109, 110, 111. 
 
 Phila. v. Penn. Hospital, 71, 86, 
 100, 110, 111. 
 
 Philbrick's Trust, 380. 
 
 Phipps' Est., In re, 66, 148, 150, 
 160, 168, 169, 171, 173, 175, 180, 
 182, 183, 187, 191, 194, 195, 197, 
 370. 
 
 Physick's Est., 130. 
 
 Pinckney, In re, 217, 218, 221. 
 
 Piatt v. Routh, 340, 342. 
 
 Piatt's Est., 412, 415. 
 
 Pollock v. Farmers' L. & T. Co., 
 15, 25, 41. 
 
 Pond, In re, 142, 211, 229, 360. 
 
 Powell, Com. v., 123, 131. 
 
 Power v. Cassidy, 113, 154. 
 
 Prevost v. Greneaux, 58. 
 
 Prichard v. Thompson, 113. 
 
 Prime's Est., In re, 84, 93, 94, 
 100, 107, 116, 117, 118, 421, 423. 
 
 Prout, In re, 355, 356, 391, 401, 
 411, 413, 414. 
 
 Province's Estate. (See Adden- 
 da.) 
 
 Pullen v. Coram., 32, 43, 46, 55, 61. 
 
 Pullman Pal. Car Co. v. Penn., 
 30, 147, 160, 194, 195, 196. 
 
 Purroy, In re, 249, 411, 415, 417. 
 
 Q 
 
 Quessart's Heirs v. Canongie, 7, 
 
 58, 424. 
 Quinn, In re, 97, 101, 344. 
 
 R 
 
 Railroad Co. v. Collector, 173. 
 
 v. Penn., 30. 
 
 v. Richmond, 52. 
 Raymond, In re, 45, 154, 231, 392. 
 Reek's App., 326. 
 Redroth's Will, 326. 
 Reg. v. Comm., 202. 
 Reilly's Est., In re, 231, 344, 367. 
 Reisch v. Com., 329, 333, 334, 337.
 
 TABLE OF CASES. 
 
 557 
 
 [References are to Pages.] 
 
 Rhymers' App., 113. 
 Richards, In re, 93, 115. 
 Richardson, In re, 308, 346, 367, 
 
 421. 
 Riddle's Est., 329, 331, 337. 
 Ring v. Jarman, 315. 
 Robertson's Est, 134, 212, 224, 
 
 244, 276, 363. 
 Rogers, In re, 344. 
 Romaine, In re, 32, 66, 146, 147, 
 
 148, 160, 163, 166, 167, 168. 169, 
 
 171, 173, 174, 175, 176, 179, 181. 
 
 182, 184, 186, 191, 192, 195, 196, 
 
 370, 372. 
 Roman Cath. Ch. v. Niles, 55, 83. 
 
 95, 307, 309. 
 Roosevelt, In re, 228, 246, 248, 
 
 252, 255, 268, 278, 279, 284, 285, 
 
 288, 290, 296, 298, 303, 310, 313, 
 
 338, 343, 414. 
 Roosevelt Hosp. v. Mayor, 74. 
 Rose v. Hatch, 2S6. 
 Rowsell, In re, 115. 
 Rubicam's Est., 219, 407. 
 Russak, In re, 219, 221. 
 Russell's Est., 218, 259. 
 Ryan, In re, 12, 121, 422. 
 
 s 
 
 St. Louis v. Wiggins, 175. 
 
 Sammon, In re, 121, 373, 382, 390, 
 392. 
 
 Sanders v. Downs, 204. 
 
 San Francisco v. Mackey, 158, 
 173, 175. 
 
 Sauter, In re, 257. 
 
 Scholey v. Rew, 14, 31, 36, 43, 393. 
 
 Schoolfield v. Lynchburg, 32, 46, 
 72. 
 
 Seaman, In re, 32, 38, 80, 228, 
 248, 254, 275, 280, 282, 285, 288, 
 304, 307, 308, 309, 352. (See Ad- 
 denda.) 
 
 Secor's Est, In re, 45, 154. 
 
 Seibert's App., 113, 329, 331, 333, 
 337, 374, 377, 382, 389, 390. 
 
 Seminary v. Cramer, 105, 109. 
 
 Shaw, In re, 422. 
 
 Sherrill v. Christ Church, 45, 60, 
 
 61, 84, 93, 94, 95, 97, 98, 106, 
 
 107, 157, 307, 423. 
 Sherwell's Est., In re, 30, 32, 34, 
 
 37, 41, 42, 43, 45, 48, 68, 69, 80, 
 
 134, 135, 142, 192, 229, 230, 379. 
 Shippen v. Burd, 135, 369, 378, 
 
 380. 
 Short's Est., In re, 32, 33, 55, 65, 
 
 135, 146, 149, 177, 179, 198, 199, 
 418. 
 
 Sidell, In re, 201, 222, 231, 343, 
 
 366, 367. 
 Skidmore, In re, 257. 
 Skillman's Est., 81, 82, 378. 
 Skottowe v. Young, 131. 
 Sloane, In re, 416. 
 Small's Est, In re, 16, 34, 41, 64, 
 
 65, 145, 146, 147, 150, 151, 152, 
 
 134, 157, 167, 174, 176, 179, 190, 
 
 194, 195, 385, 413. 
 Smith v. Van Nostrand, 286. 
 Smith's Est, In re, 116, 118, 132, 
 
 134, 147, 204, 205, 215, 256, 259, 
 
 260, 261, 350, 354, 358, 376, 377, 
 
 398, 399. 
 Smith's Will, 164. 
 Society for Savings v. Coit, 61. 
 Sohier v. Eldridge, 369, 374, 377, 
 
 378, 380, 3S8, 393, 410. 
 Somerville, In re, 211, 212. 
 Spencer, In re, 122, 124, 125, 127, 
 
 129, 130, 422. 
 Spies, In re, 266, 267. 
 Sprankle v. Com., 272, 411, 412. 
 Stacey, In re, 174. 
 Standard Oil Co., Com. v., 173, 
 
 424. 
 Stanford, In re, 216, 245, 249, 250. 
 Stanton's Est., 149, 150, 151. 
 State v. Alston. (See Addenda.) 
 v. Brevard, 149, 16S, 197, 371, 
 
 372. 
 v. Brim, 16S, 197, 198. 
 v. County of St. Louis, 175.
 
 558 
 
 TABLE OF CASES. 
 
 [References are to Pages.] 
 
 State v. Dalrymple, 31, 45, 47, 65, 
 135, 146, 148, 149, 159, 
 160, 167, 168, 170, 173, 
 175, 179, 187, 191, 195. 
 
 v. Dorsey, 17, 343. 
 
 V. Ferris, 23, 32, 35, 36, 37, 
 
 41, 42, 47, 49, 54, 68, 70, 
 77, 89, 389. 
 
 V. Gorman, 24, 25, 37, 40, 47, 
 
 70. 
 v. Hamlin, 22, 32, 34, 36, 41, 
 
 42, 43, 44, 46, 47, 51, 52, 
 53, 54, 69, 87, 140. 
 
 v. Hancock, 22, 52. 
 v. Mann, 25, 35, 47. 
 Montague v., 45, 54, 55, 362, 
 369, 377, 382, 387, 389, 
 391. 
 Tyson v., 31, 45, 46, 47, 64, 
 149, 226, 232, 259, 260. 
 Stelz v. Schreck, 228, 269, 284. 
 Stephen v. Com., 363. 
 Sterling's Est., 81, 135, 140, 229, 
 
 378, 421. 
 Stewart, In re, 75, 215, 217, 228, 
 246, 247, 248, 250, 255, 
 256, 260, 277, 278, 285, 
 287, 303, 304, 305, 306, 
 312, 341, 413, 415, 417, 
 419. 
 v. Green, 113. 
 Stewart's Est, In re (Bell's 
 
 App.), 408. 
 Stiger, In re, 74, 143, 155, 217. 
 Stiles, In re, 245. 
 Stilwell, Ex parte, 144, 384. 
 Stilwell's Est., In re, 120, 127, 
 
 129, 275. 
 Stinger v. Com., 212, 214, 216, 
 217, 258, 259, 262, 335, 347, 354. 
 Stokes v. Ducroz, 149. 
 Strode v. Com., 7, 31, 33, 43, 51, 
 60, 199, 200, 201, 219, 258, 259, 
 354. 
 Strong, In re, 50, 149, 150, 151, 
 
 166, 187. 
 Stuart v. Palmer, 214. 
 
 Stucke, In re, 360, 402. 
 Stump, Com. v., 130. 
 Sturgis v. U. S., 424. 
 Succession of Amat, 58. 
 Crassius, 58. 
 Dufour, 58. 
 Dupuy, 376, 388, 389, 392, 398, 
 
 410. 
 Oyon, 133, 418. 
 Peyroud, 133, 392, 418. 
 Schaffer, 58. 
 Surrogate Cayuga Co., In re, 285. 
 Swann's Est, In re, 111, 399. 
 Sweetland's Est, 125, 129. 
 Swift, In re, 31, 34, 38, 41, 42, 44, 
 45, 59, 62, 65, 66, 67, 93, 135, 
 143, 147, 149, 150, 151, 152, 154, 
 187, 190, 191, 201, 212, 216, 220, 
 266, 267, 342, 368, 370, 371, 379, 
 380. 
 
 T 
 
 Talmadge v. Seaman, 32, 38, 80, 
 
 82, 228, 245, 248, 254, 275, 277, 
 
 279, 280, 282, 283, 284, 285, 288, 
 
 293, 303, 307, 309, 352. 
 Taylor's Est., In re, 81, 116, 118, 
 
 137, 140, 143. 
 Templeton Grove v. Cramer, 109, 
 
 110. 
 Terry v. Wiggins, 286. 
 Tharp v. Com., 121, 123, 130. 
 Thomas, In re, 34, 122, 124, 129, 
 
 150, 168, 180, 187, 191, 197, 422, 
 
 423. 
 Thomas v. Wolford, 287. 
 Thompson, In re, 80, 97, 107, 121, 
 
 134, 135, 270, 272, 329, 422. 
 Thompson v. Adv. Gen., 146, 159, 
 161, 169, 171, 195. 
 v. Brown. 336. 
 v. Hill, 283. 
 Thomson's Est., 97, 265, 266, 270, 
 
 329, 331, 369, 378. 
 Thorley v. Massam, 266. 
 Thorn v. Gamer, 141.
 
 TABLE OF CASES. 
 
 559 
 
 [References are to Pages.] 
 
 Thorne, In re, 122, 423. 
 
 Tobias, In re, 280, 284, 307, 310, 
 
 312, 314, 340. 
 Tompkins v. Little Rock R. R. 
 
 Co., 405. 
 Tootal's Trust, In re, 158, 16G, 
 
 197, 199. 
 Torrey v. Willard, 362, 377, 387, 
 
 389, 391. 
 Townsend v. Frommer, 343. 
 Tratt v. Crotzer, 329, 330. 
 Tucker v. Ferguson, 74. 
 Tuigg's Est, In re, 41, 59, 61, 66, 
 
 107, 115, 116, 343, 347. 
 Tulane, In re, 163, 171, 177, 180, 
 
 190, 191, 193, 195, 199, 370. 
 Turner v. Martin, 347, 3S2. 
 Tyson v. State, 31, 45, 46, 47, 64, 
 
 149, 226, 232, 259, 260. 
 Tyson's App., 347. 
 
 u 
 
 Udney v. Udney, 158, 166. 
 Ullman, In re, 204, 205, 214, 350, 
 
 351, 352, 355, 395. 
 Underhill, In re, 80, 344, 356, 367, 
 
 382. 
 Union Trust Co. Case, 218. 
 U. S. v. Allen, 373, 388, 410. 
 
 v. Banks, 329, 334. 
 
 v. Brice, 231, 274, 424. 
 
 v. Erie Ry. Co., 173. 
 
 v. Hart, 329, 334. 
 
 v. Hazard, 231, 274, 410, 424. 
 
 v. Hillegas, 119. 
 
 v. Hunnewell, 65, 149, 158, 
 171. 
 
 v. Ins. Co., 266, 424. 
 
 v. Kelley, 424. 
 
 v. Leverich, 331, 337. 
 
 v. Maurice. 63. 
 
 v. Morris, 158, 171. 
 
 v. Penn. Co., 359, 373, 386, 
 388, 396, 410. 
 
 v. Rankin, 195, 424. 
 
 v. Tappan, 374, 377, 3S8. 
 
 U. S. v. Townsend, 424. 
 
 v. Trucks, 349, 373, 377, 386, 
 
 387, 388, 395, 410. 
 v. Watts, 75, 144, 393. 
 v. Wigglesworth, 75. 
 U. S. Trust Co. v. Mayor, 387. 
 Utica Cotton Co. v. Supervisors, 
 99. 
 
 Van Brocklin v. Tenn., 119. 
 Van Bueren, In re, 266, 267, 380. 
 Vanderbilt's Est., In re, 7, 60, 78, 
 79, 84, 97, 98, 99, 101, 105, 106, 
 
 107, 109, 112, 115, 141, 213, 214, 
 258, 262, 263, 355, 356, 358, 359, 
 363, 369, 375, 377, 382, 391, 392, 
 395, 396, 397, 398, 399, 406, 417. 
 
 Van Derventer v. Long Island 
 
 City, 203. 
 Van Horn v. Campbell, 286. 
 Van Kleeck, In re, 60, 84, 94, 95, 
 
 97, 106, 112, 423. 
 Van Rensselaer, In re, 245, 282, 
 
 303. 
 Van Riper v. Happenheimer, 22, 
 
 37, 52, 132. 
 Vassar, In re, 75, 78, 84, 93, 94, 
 
 96, 97, 98, 99, 100, 104, 105, 107, 
 
 108, 112, 201, 217, 221, 222, 227, 
 266, 281. 283, 368, 387, 413. 
 
 Vinot, In re, 66, 113, 160, 168, 175, 
 
 181, 191, 195, 245, 282. 
 Vogeis, In re, 114. 
 
 W 
 
 Wager v. Wager, 287. 
 Waginer, In re, 357, 359, 397. 
 Wagner Inst. v. Phila., 100, 111. 
 Wallace v. Atty.-Gen., 66, 159, 
 
 160, 161, 162, 164, 167, 
 
 171, 191, 199, 200. 
 v. Myers, 32, 37. 42. 52, 58, 
 
 59, 61, 71, 216. 
 In re. 213. 246, 248. 250, 256. 
 
 2S5, 287, 304, 305.
 
 560 
 
 TABLE OF CASES. 
 
 [References are to Pages.] 
 
 Waller, Est., 94. 
 
 Wallops' Trust, In re, 159, 163, 
 
 164, 199, 250. 
 Walsh, In re, 392, 393. 
 Walter's Est., 112. 
 Ward v. Richardson, 382. 
 Warrimer v. People, 121. 
 Waterer v. Waterer, 153. 
 Watkins v. Reynolds, 343. 
 Waugh's App., 329. 
 Wayne, In re, 123, 130, 423. 
 Weaver's Est., 16, 150, 151, 180, 
 
 187, 194, 197. 
 Weed, In re, 189, 366, 383. 
 Westcott's Est., 296. 
 Weston v. Goodrich, 204, 205, 
 
 349, 350, 352, 386, 394, 395. 
 Wharton's Est, In re, 130, 226, 
 
 265, 270, 271, 272, 273, 301, 320, 
 
 327, 412. 
 Wheeler, In re, 45, 125, 127, 129, 
 
 137, 154, 155, 210, 246, 252, 254, 
 
 285, 296, 366. 
 White v. Howard, 154. 
 Wilcox v. Smith, 10, 274. 
 Wilhelmi v. Wade, 393, 410. 
 Wilkes, In re, 263. 
 Wilkins, Est., 303. 
 Wilkinson, In re, 92, 373, 378, 3yo, 
 
 392. 
 
 Williams v. Board of Supervisors, 
 
 180. 
 Williams' Case, 8, 32, 72, 224. 
 Williams, Com. v., 133. 
 Williamson v. Naylor, 347, 407. 
 Williamson's Est., In re, 44, 45, 
 
 67, 153, 155, 206, 219, 242, 266, 
 
 324, 347, 419. 
 Willings, In re, 235, 239, 241, 265, 
 
 269, 271, 272, 301, 318, 320, 321, 
 
 409. 
 Wilson v. Gaines, 74. 
 
 v. O'Leary, 268. 
 Wisconsin v. Ins. Co., 411. 
 Witman v. Lex, 326. 
 Wolfe, In re, 18, 44, 143, 152, 204, 
 
 205, 211, 214, 215, 256, 258, 260, 
 
 308, 350, 354, 355, 356, 358, 35U, 
 
 386, 395, 396, 398, 401. 
 Woolsey, In re, 131, 132. 
 Wright, In re, 270, 344. 346. 
 Wright's App., 329, 331, 369, 374. 
 Wright v. Blakeslee, 231, 274,275, 
 
 316, 410, 413. 
 Wurts v. Hoagland, 52. 
 
 Young Men's Ch. Ass'n v. Mayor, 
 78, 112.
 
 INDEX. 
 
 [REFERENCES are to pages.] 
 
 A 
 
 ACADEMIES, 
 
 exemption of, 78. 
 
 ACCELERATION, 
 
 between remainder-man and life tenant, 275. 
 
 ACCOUNTING, 
 
 when district attorney proper party upon, 397. 
 not entitled to collect tax on, 397. 
 
 when executor protected upon, for taxes paid for infant, 382. 
 see "Remedy and Practice." 
 
 ACTION OF DEBT, 
 
 see "Debt"; "Remedy and Practice." 
 
 ACTIONS, 
 
 see "Remedy and Practice." 
 ACTS, 
 
 constitutional objections to title of, 51, 57. 
 
 exemptions to be by general or special, 75, 94. 
 see "Statutes." 
 
 ACTS OP CONGRESS, 
 
 succession under defined, 274. 
 succession and legacy taxes under, 14, 144. 
 under income tax act of 1894, 14. 
 exemptions under, 144. 
 
 no personal liability of executor under succession tax, 388. 
 when executor personally liable under legacy act, 388. 
 lien of tax, how enforced under, 3S8, 389. 
 legacies from personal property, when exempt, 144. 
 Inference from taxing legacies from real estate, 144. 
 law inher, — 36 (561)
 
 562 INDEX. 
 
 [References are to Pages.] 
 
 ACTS OF CONGRESS— Continued, 
 
 compromise moneys, when not legacies under, 144. 
 
 tax imposed where life tenant and remainder-man accelerated 
 
 succession, 275. 
 money from French spoliation claims not legacies under, 144. 
 second duties, when not chargeable, 144. 
 laws taxing remainders, 274, 275. 
 appraisement under, 231. 
 conflicting decisions under acts of, 424 (note), 
 repeal of, 14, 424. 
 
 effect of saving clause of repealing act, 14 (note), 424. 
 see "Exemptions." 
 
 ADMINISTRATION, 
 
 state power to tax estate during period of, 56, 57. 
 right to tax when there is a new, 160. 
 
 effect upon state of neglect to administer upon estate, 409. 
 expenses of, when tax cannot be paid by executor as part of, 379, 
 380". 
 
 ADMINISTRATOR, 
 
 duties of, in Pennsylvania, 372 (note). 
 
 not appointed where he has hindered collection of tax by removing 
 
 property from state, 363. 
 rules as to payment of tax by, in Pennsylvania, 370, 371. 
 when not to pay tax upon real estate out of personalty, 372. 
 may sell property to pay tax, 364, 365. 
 where intestate estate pays tax before distribution, 372. 
 to give bond to pay tax, 363. 
 cannot deliver legacy until tax collected, 364. 
 when not liable for tax on foreign real estate, 371. 
 entitled to notice of appraisement, 369. 
 may procure appointment of appraiser, 369. 
 proceeding of, to have property assessed, 397. 
 effect of decree made in proceedings by, 399. 
 appeal of, from appraiser's report, 403. 
 liability of heirs to, where tax paid, 373. 
 liability of, as to legatees, etc., 373, 377. 
 liability of, in action at law by county treasurer, 391. 
 liable for tax until paid, 363. 
 personal liability of, 374.
 
 INDEX. 563 
 
 [References are to Pages.] 
 
 ADMINISTRATOR— Continued, 
 
 personal liability of, in Pennsylvania, 374. 
 personal liability of, under New York statute, 374. 
 liability of, under acts of congress, 373. 
 liability under English statutes, 373. 
 when personally liable for costs, 374, 375. 
 when chargeable with penalty, 374. 
 when relieved from penalty, 411, 412. 
 
 contempt or attachment proceedings against, etc., 355, 391. 
 foreign, liability of, for tax, 371. 
 
 foreign, when liable for stock transferred, 370 (note 109), 371. 
 see "Executors." 
 
 ADOPTED CHILDREN, 
 
 when word "children" does not include, 120. 
 
 effect of statutes giving right to inherit, 123. 
 
 exemption of, in New York, Connecticut, and other states, 82, 
 
 120, 121, 122, 421, 422. 
 taxable at 1 per cent, under New York Act 1892, 122. 
 under New York acts prior to 1892, 121, 122, 421, 422, 423. 
 
 in California, 87. 
 
 Maine, 87. 
 
 Massachusetts, 88. 
 
 Ohio, 89. 
 effect of amendatory statute upon decree taxing, 122, 421. 
 children of, when not exempt, 122 (note), 423 (note), 
 lineal descendants of, when exempted, 120. 
 when parent by nature as heir of, exempt, 123. 
 method of adoption in New York, 122. 
 adoption under laws of other states, when sufficient, 122. 
 
 see "Illegitimate Children"; "Mutually Acknowledged Rela- 
 tion." 
 
 ADOPTION, 
 
 method of, in New York, 122. 
 
 ADVANCEMENTS, 
 
 when loans by decedent to his sons are legacies, 346. 
 
 AGENTS, 
 
 of state, executors, administrators, etc., deemed in Pennsylvania, 
 374.
 
 564 INDEX. 
 
 [References are to Pages.] 
 
 ALIENS, 
 
 power of state to tax property of, 58, 133, 146. 
 when treaty violated by taxing, 58. 
 when not taxable under legacy act in England, 159. 
 taxation of, under succession duty act, 159. 
 
 when estopped from setting up defense that devise to ia void, 393. 
 see "Foreigners" ; "Nonresident Decedents." 
 
 ALMSHOUSE, 
 
 defined, and claiming exemptions, 92, 97, 98, 99, 101, 104, 107. 
 when liable to legacy tax, 103. 
 
 institution exacting fee when an almshouse, 108 et seq. 
 ruling of court in Vassar Case criticised, 109. 
 see "Exemptions." 
 
 AMENDATORY STATUTES, 
 how construed, 80 (note), 420. 
 when they take effect, 420. 
 
 effect of, upon adopted children for taxes due, 120, 121, 421, 422. 
 when not retroactive, upon taxes due, 420. 
 see "Remedy and Practice"; "Statutes." 
 
 AMERICAN STATUTES, 
 
 enumeration of, 13 et seq., 77 et seq. 
 policy of, 15. 
 
 exemptions under, compared with English acts, 15, 77. 
 see "Statutes." 
 
 ANCESTOR, 
 
 of husband or wife, exemption of, 86. 
 
 ANIMALS, 
 
 societies to protect, exemption of, 83, 92. 
 
 ANNUITEES, 
 
 are estates, under inheritance tax law, 266. 
 
 legacies payable out of income are, 266. 
 
 granted to trustees to carry on business taxable, 266. 
 
 liability of, not affected by payment out of principal fund, 266. 
 
 when contingent, no tax payable by exempt life tenant upon, 266, 
 268. 
 
 contingent, when tax payable until life tenant's death or re- 
 mainders vest in possession, in New York, 268, 291. 
 
 when tax upon, payable in Massachusetts, 267.
 
 INDEX. 5U5 
 
 [References are to Pages.] 
 
 ANNUITIES— Continued, 
 
 when legacy not an annuity, tax upon, 207. 
 
 when annuity to daughter's husband for their children not tax- 
 able in Pennsylvania, 269. 
 how tax upon must be met out of income, 267. 
 no concern of state how tax upon is paid, 267, 3S0. 
 appraisement in New York, 215. 
 
 appraisement and taxation of, when contingent, 228, 266, 290, 291. 
 duty of appraiser as to, 227. 
 where legatee relieved by will from tax on, executor liable, 379. 
 
 ANNUITY TABLE, 539. 
 
 ANTICIPATION, 
 
 of payment by remainder-man, rule as to, 238, 242 (note), 271, 272. 
 
 APPEAL, 
 
 from appraiser's reports in New York and Illinois, 256, 257. 
 rules regulating, in New York, 257 (note), 365 (note), 
 grounds of, must be alleged, 257. 
 when disallowed from appraiser's report, 257. 
 where none taken tax becomes conclusive, 258. 
 from assessment, security on, 402. 
 
 none allowed in Pennsylvania unless error shown, 258 (note), 
 when payment of tax no bar to, on part of state, 259. 
 of heir when tax on real estate, 403. 
 when administrator has right of, 403. 
 findings of fact on, in New York, 402 (note), 
 when question of restitution not considered on, 404. 
 who to be made parties upon, 404. 
 when right of, begins to run, 259. 
 value of policies cannot be raised on, 259. 
 
 power of United States supreme court to review state court by, 
 402 (note), 
 see "Remedy and Practice." 
 
 APPOINTMENT, 
 
 see "Power of Appointment"; "Power of Disposition." 
 
 APPRAISEMENT, 
 
 under general tax laws defined. 203. 
 
 assessments and assessors, and rules regulating, 203 et seq. 
 
 how statute must be complied with in making, 204.
 
 566 INDEX. 
 
 [References are to Pages.] 
 
 APPRAISEMENT— Continued, 
 
 county treasurer may apply for, 391. 
 
 county treasurer or comptroller in New York entitled to notice of, 
 
 204 (note), 
 duty of executor to apply for, 210. 
 
 how made under inheritance tax laws, 203 et seq., 209 et seq. 
 when jurisdiction of surrogate is exclusive, 205, 206, 352, 353. 
 supreme court may grant reappraisement on application of state 
 
 comptroller, 207, 215, 259, 353. 
 not confined to property taxable under general laws, 208. 
 all property must be considered, 208. 
 may include policies of insurance, 114, 208 (note), 259. 
 forms relating to, in New York, Appendix, 532. 
 of land and personal securities under these acts, 209, 210, 216, 217. 
 only taxable property subject to, 211, 213. 
 object of, to ascertain value, 212. 
 when property has no actual or potential value, 217. 
 conclusive only as to value, 217. 
 When asset must be appraised at par, 218. 
 When market value does not warrant, 218. 
 certificate of superintendent insurance, effect of in New York, 225, 
 
 280, 281. 
 when debts and liabilities to be deducted from, 221, 222, 223. 
 notice of, and hearing upon, 214. 
 
 effect of, upon parties not notified of, 214, 256, 258 (note), 375. 
 by executors without notifying the state held binding under Acts 
 
 1885, 1887, 375, 376. 
 fair market value as to, 216, 217. 
 under general law does not bind, 217. 
 sale in partition suit does not fix value, 217. 
 order for, of real estate must describe same, 217, 218. 
 of partnership interests, 210 (note), 
 of life estates, annuities, legacies, and terms of years under New 
 
 York statute, 224, 225. 
 of annuities and life estates in Connecticut, 225. 
 of remainders in Massachusetts, 226. 
 life estates, annuities, or remainders in Maryland, 226. 
 under the Pennsylvania statute, 226, 232. 
 of estate to husband and wife as tenants by entirety, 227.
 
 INDEX. 507 
 
 [References are to Pages.] 
 
 APPRAISEMENT— Continued, 
 
 of estate to decedent's widow for life, or until she marries again, 
 228. 
 
 of legacies and estates of $500 under Act N. Y. 1887, 229. 
 of estates of $250 in Pennsylvania, rule as to, 142, 230. 
 
 legacies for debts and services, when not subject to, 230, 23L 
 
 of future and contingent estates under acts of congress, 231. 
 
 of such estates in Maryland and Connecticut, 231. 
 
 of such estates in Pennsylvania, 231, 233. 
 
 under earlier statutes prior to 1850, 233, 234, 235. 
 
 under acts of Pennsylvania 1850, 1855, 236, 237, 240. 
 18S7, 238, 240. 
 
 when remainder may have immediate, 238. 
 
 when appraisement and tax postponed. 238. 
 
 rules where remainder-man anticipates payment, 239, 240, 242 
 (note). 
 
 value of remainder, how ascertained, 240. 
 
 where widow or life tenant has power of disposition, 228, 242, 243. 
 
 method of assessing tax on remainders in Pennsylvania, 241, 242 
 (note). 
 
 of remainders, contingent or future estates, in New York, 224 et 
 seq., 228, 243. 
 
 provisions of act of 1S92 as to, 243 et seq. 
 
 not appraisable until contingent estate vests in possession, 244. 
 
 vested remainders appraisable at death, 245. 
 
 contingent estates, when appraisable at death, 245, 24S, 254. 
 
 of remainders, where trustee or life tenant has power of disposi- 
 tion, 246, 247, 249. 
 
 contingent estates may be appraised on vesting in possession, 248, 
 254. 
 
 how often may be allowed, 260, 261. 
 
 effect upon, of fraud, mistake, concealment, collusion, or omis- 
 sion, 215, 258, 259, 260. 
 
 second, allowed where property concealed, withheld, or over- 
 looked, 215, 258, 259, 260. 
 
 second, of pictures, when allowed for common mistake, in Eng- 
 land, 262. 
 
 allowed, owing to mutual mistake, after 13 years, 262. 
 
 not allowed of increase, where property once assessed, 215, 260, 
 261.
 
 568 INDEX. 
 
 [References are to Pages.] 
 
 APPRAISEMENT— Continued, 
 effect of appraisement, 256, 263. 
 
 appeals, when allowed therefrom in New York and Illinois, 256, 
 263. 
 
 APPRAISERS, 
 
 appointment, powers, and duties of, 209 et seq., 211, 212. 
 
 duties of, defined by Ransom, S., in Re Astor, 212, 214. 
 
 not to report exemptions, 213. 
 
 appointed by supreme court on application of state comptroller, 
 
 207. 
 appointed in Pennsylvania by register of wills, 233. 
 expert appraisers may be appointed in Pennsylvania, 210. 
 when they act judicially, 203. 
 
 appointed whenever occasion may require, 215, 260. 
 executor to procure appointment of, 210. 
 when surrogate may or may not appoint, 211. 
 when surrogate acts as, 204. 
 order appointing, contents of, 213. 
 when application for denied, 247. 
 appointed in New York on application of county treasurer, etc., 
 
 391. 
 not necessary to appoint, where legacies in cash, 211, 368 (note 
 
 101). 
 not appointed where life tenant has power of disposition, 247. 
 must notify all parties interested, 214, 256. 
 infants to be notified and represented by special guardians in New 
 
 York, 256, 258 (note), 
 proceedings void as to persons not notified by, 214, 256. 
 notice to be given by, to county treasurer, etc., in New York, 204 
 
 (note), 214. 
 when decisions of, as to value, not reviewed, 204. 
 to fix "fair market value," 209, 218. 
 real estate and personal property, how appraised, 209, 210, 217, 
 
 218, 221. 
 when not to deduct mortgage upon foreign real estate, 219. 
 when mortgage debt to be deducted by, 220. 
 power of, to deduct debts, expenses, or executor's commissions, in 
 
 New York, 220, 221, 222, 368. 
 recent ruling as to deductions, 368.
 
 INDEX. 569 
 
 [References are to Pages.] 
 
 APPRAISERS— Continued, 
 
 rule in Pennsylvania as to deductions, 223. 
 
 may examine and construe will, 214. 
 
 when second appraisement to be allowed, 215. 
 
 duties of, as to life estates and annuities, 224, 226. 
 
 where in doubt as to liability, property to be reported, 213. 
 
 when not to report exemptions, 213. 
 
 may take testimony under oath in New York, 213. 
 
 may call and hear witnesses, 213. 
 
 same power in Pennsylvania and Illinois, 213. 
 
 may examine will on appraisement, 214. 
 
 may appraise land in different counties, 216, 217. 
 
 not bound by general appraisal, 217. 
 
 when surrogate not bound by report of, 215, 263. 
 
 report of, when not final, 215, 263. 
 
 reporting residuary estate, 216. 
 
 when state may appeal from report of, 256, 257, 260. 
 
 appeals from report of, in New York and Illinois, 256, 257. 
 
 60 days' time allowed to appeal, 256, 257. 
 
 rules of surrogate's court of New York as to specifying grounds 
 
 of appeal from report of, 257 (note), 
 when order confirming report of conclusive on state, 261. 
 confirmation of report, when not postponed, 263. 
 report, failure to appeal from, effect of, 258. 
 report of, in Pennsylvania, to show prima facie error, 258 (note), 
 mandamus by, against county treasurer, to compel payment of 
 
 fees, 209. 
 taking fee or reward a misdemeanor in New York, 209 (note). 
 
 ART, 
 
 works of, including books, coins, when exempt in England, 112. 
 
 ASSESSMENT, 
 
 see "Appraisement"; 'Appraiser.'* 
 
 ASSESSOR, 
 
 see "Appraiser." 
 
 ASSIGNMENT, 
 
 inter vivos, when taxable, 330. 
 in trust to defeat tax, 330, 331. 
 
 see "Gifts inter Vivos and Causa Mortis."
 
 570 INDEX. 
 
 [References are to Pages.] 
 
 ASSOCIATIONS, 
 see "Exemptions." 
 
 ASSUMPSIT, 
 
 action of, by state, to recover tax, 389. 
 
 ASYLUMS, 
 
 see "Exemptions." 
 
 ATTACHMENT OR CONTEMPT PROCEEDINGS, 
 to collect tax, 355, 391. 
 
 ATTORNEY GENERAL, 
 
 bill in equity by, to collect tax, 389. 
 
 AUDITOR GENERAL, 
 
 in Pennsylvania, may approve appointment of expert appraisers, 
 210. 
 
 AUGUSTUS, EMPEROR, 
 
 succession tax under, 7. 
 
 AUSTRALIAN COLONIES, 
 succession taxes in, 2. 
 
 AUSTRIA, 
 
 succession taxes in, 2. 
 
 AUTHORS, 
 
 list of English, on succession and Inheritance tax, 11. 
 see, also, List of Authors, xxi. 
 
 BENEFICIARY SOCIETY, 
 
 when payment by, to deceased member's next of kin, exempt, 113, 
 114. 
 
 BENEFIT SOCIETIES, 
 exemption of, 92. 
 
 BENEVOLENT CORPORATIONS, 
 
 exemptions of, 84, 86-88, 96. 
 
 BEQUEST, 
 defined, 100. 
 
 see "Exemptions."
 
 INDEX. 571 
 
 [References are to Pages.] 
 
 BIBLE SOCIETIES, 
 
 exemption of, 83, 88. 
 see "Exemptions." 
 
 BILL IN EQUITY, 
 
 to collect tax, when maintainable, 389. 
 
 BILL IN ORPHANS' COURT, 
 to enforce tax, 390. 
 
 BOARDS OF FOREIGN MISSIONS, 
 when not exempt, 99, 100. 
 
 BONA FIDE PURCHASERS, 
 
 rights of, in buying real estate, 394, 406. 
 see "Remedy and Practice." 
 
 BOND, 
 
 by remainder-man, to postpone payment of tax, 239, 248, 317, 320. 
 
 when remainder-man need not file, 285. 
 
 effect of failure to file, under Pennsylvania statute, 239. 
 
 BONDS, 
 
 power of state to tax nonresident decedents upon, 65. 
 
 tax upon government bonds and state securities, when valid, 59 
 
 et seq. 
 of foreign decedents, when exempt in Pennsylvania, 177 et seq. 
 of foreign corporations of nonresident decedents in New York, 
 
 171 (note), 
 doctrine of James Case es to, of nonresidents, 183 et seq. 
 as to whether bonds, stocks, etc., are tangible or intangible prop- 
 erty, 173 (note 104). 
 see "Tangible and Intangible Property." 
 
 BONUS, 
 
 legacy tax defined as an assessment or, 31. 
 
 BOOKS ON ENGLISH LEGACY AND SUCCESSION DUTIES, 11. 
 
 BOOKS, 
 
 exemption of, and statues, coins, etc, 112. 
 
 BREWER, JUSTICE, 
 
 opinion of succession taxes, 2 (note). 
 
 BRITISH COLUMBIA, 
 history of tax in, 27.
 
 572 INDEX. 
 
 [References are to Pages.] 
 
 BRODIE, PETER B., 
 
 on succession duties, 11. 
 
 BROOKLYN, 
 
 public library in, exempt, 99. 
 
 BROTHERS AND SISTERS, 
 
 when exempt as lineal descendants In Pennsylvania, 133. 
 see "Exemptions." 
 
 BUILDINGS, 
 
 for public worship, college, schoolhouse, exemption of, in New 
 York, 78. 
 
 BURDEN, 
 
 of proof, to relieve from penalty for nonpayment of tax, 414. 
 
 BURIAL PLAGES, 
 
 exemption of, in Pennsylvania, 85 (note). 
 
 BURIAL PLOT, 
 
 when expenses for, exempt, 113. 
 
 BUSINESS, 
 
 when institutions not doing, exempt as almshouses, 102. 
 
 BUSINESS CORPORATIONS, 
 
 when not exempt in New York, 84. 
 
 BUXTON, SIDNEY, 
 
 on death duties, 11 (note). 
 
 
 
 CALIFORNIA, 
 
 statute of, appendix, 510. 
 history of tax in, 23. 
 exemptions under statute of, 87. 
 
 CANADIAN PROVINCES, 
 succession taxes in, 2, 26. 
 
 CARLISLE TABLES, 
 
 use of, in Pennsylvania, 227. 
 
 CASH LEGACIES, 
 
 when appraiser not necessary for, 211, 368 (note 101). 
 
 CAUSA MORTIS, 
 
 gifts by, see '"Gifts inter Vivos and Causa Mortis.**
 
 INDEX. 573 
 
 [References are to Pages.] 
 
 CEMETERIES, 
 
 exemption of, 92, 97, 101, 105, 113. 
 
 CERTIFICATES OF STOCK AND BONDS, 
 when deemed property, 173 (note 104). 
 
 CESTUI QUE TRUST, 
 
 funds in hands of, when taxable, 330. 
 
 CHARGE, 
 
 when institutions making, not almshouses, 106, 107. 
 
 CHARITABLE AND RELIGIOUS CORPORATIONS AND OTH- 
 ER OBJECTS, 
 taxation and exemption of, 92-115. 
 England, under legacy act, 92, 93. 
 what included in term, 92. 
 
 when not "incorporated companies" in New York, 97, 98. 
 general policy as to exemption of, 7, 68. 
 not originally exempted from tax, 75. 
 exemption of, under New York statutes, 78, 79. 
 general rule in New York as to liability and exemption of, 74. 
 general statutes of New York exempting, 77 et seq. 
 exemption of, by Act 1890, 83. 
 
 from inheritance tax in New York, by Act 1892, 83. 
 
 as almshouses, 97. 
 
 in Pennsylvania, Virginia, and North Carolina, 100. 
 when conveyance to, not gift, bequest, or endowment, 100. 
 statute relieving from tax, when not retroactive, 423. 
 
 see "Exemptions." 
 
 CHARITABLE PURPOSE, 
 
 defined, under Connecticut statute, 86. 
 exemption of corporations for, 92, 95. 
 
 CHILDREN, 
 
 see "Adopted Children"; "Illegitimate Children." 
 
 CHILDREN'S AID SOCIETIES, 
 exemption of, in New York, 84. 
 
 CHILE, 
 
 succession taxes in, 2. 
 
 CHRISTIAN ASSOCIATIONS, 
 exemption of, 92.
 
 574 INDEX. 
 
 (.References are to Pages.] 
 
 CHURCH BELL, 
 
 legacy for ringing, taxable, 113. 
 
 CHURCHES, 
 
 exemption of, from legacy and general taxation In New York, 92, 
 
 97, 98. 
 when bequests to, not exempt, 97, 98, 107. 
 when bequest to build, not exempt, 105, 106. 
 not exempt as "incorporated companies," 98. 
 
 CITATION, 
 
 of parties interested in estate, 358, 359, 401. 
 
 defense upon return of, 400, 401. 
 CITY, 
 
 when liable to legacy tax, 119. 
 
 CLEAR OR FREE OF TAX, 
 when legacy is, 378. 
 rules as to, 378, 379. 
 
 CLEAR VALUE, 
 
 fair market value of property to be determined, 201. 
 
 COLLATERAL AND DIRECT INHERITANCE TAX LAWS, 
 defined, 5. 
 
 enumeration of, in United States, 13 et seq. 
 reasons for, 2. 
 
 history of, under Roman law, 7. 
 proposed legislation in other states, 25. 
 nature and constitutionality of, 29 et seq. 
 approved by economists and jurists, 2, 3. 
 imposed upon privilege of succession, 30 et seq. 
 not a forfeiture or penalty, 7. 
 see "Constitutionality"; "Tax." 
 
 COLLATERAL AND LINEAL CONSANGUINITY, 
 
 rule relating to, 133 (note). 
 
 COLLATERAL HEIRS, 
 
 power of state to tax property passing to, 33, 34. 
 exemption of, 76. 
 
 COLLEGES, 
 
 general exemption of, 92. 
 
 when not exempt from legacy and general taxation in New York, 
 97-99.
 
 INDEX. 575 
 
 [References are to Pages.J 
 
 COLLEGES— Continued, 
 
 when not exempt as public charities, 100. 
 
 buildings, when exempt, 78. 
 
 not exempt in North Carolina and Virginia, 100. 
 
 not exempt in Pennsylvania, 100, 111. 
 
 when not exempt as incorporated company, 97. 
 
 COLUMBIA COLLEGE, 
 
 New York, legacies to, exempt, 99. 
 
 COMITY, 
 
 as to taxation of foreign corporations and governments, 115. 
 rules as to taxing nonresidents based upon, 169. 
 
 COMMERCE, 
 
 when tax not upon, 57. 
 
 COMMISSIONS, 
 
 compensation to executor in lieu of, when exempt In New York, 
 
 83, 291, 343 (note), 366, 367. 
 and expenses of administration, when not deducted by apprais- 
 er, 368. 
 exempt in Pennsylvania, 84. 
 California, 87. 
 Maine, 87. 
 Massachusetts, 88. 
 Ohio, 89. 
 
 see "Administrators"; "Executors." 
 
 COMMODITY, 
 
 tax held to be upon, in Massachusetts, 40. 
 
 COMMON LAW, 
 
 when statutes take effect at, 419. 
 
 rule as to statutes repealed in New York, 419. 
 
 remedy at, to collect tax, when not maintainable, 388. 
 
 liability of legatee to executor at, 391, 392. 
 
 COMPENSATION, 
 
 taking of private property without, SI- 
 COMPROMISE, 
 
 of tax between public officers, executors, and legatees, 383. 
 
 between executors and heirs, not subject to legacy tax, 144, 384.
 
 576 INDEX. 
 
 [References are to Pages.] 
 
 COMPROMISE— Continued, 
 
 when state comptroller in New York may make, with benefici- 
 aries, 383. 
 when may be had under English statutes, 383. 
 amicable arrangement between sons, 384. 
 when duty imposed, 384. 
 
 with disinherited son, no tax imposed on money paid to, 384, 385. 
 between contestants and devisees, no tax upon, 385. 
 between widow and estate, when interest in partnership taxable, 
 385. 
 
 COMPTROLLER, 
 
 of the city and county of New York, see "County Treasurer." 
 
 CONCEALMENT, 
 
 effect of, upon appraisement, 258-260. 
 
 CONCLUSIONS OF LAW AND FACT, 
 
 necessity for, in New York, 402 (note). 
 
 CONCLUSIVENESS, 
 
 of judgment as to amount of tax, in Maryland, 260. 
 
 of appraisement not appealed from, 258. 
 
 of certificate of superintendent of insurance, in New York, 225. 
 
 CONDITIONAL BOND, 
 
 by remainder-man to pay tax, 239, 248, 317, 320. 
 effect of failure to give, by remainder-man, 239. 
 
 CONGRESS, 
 
 see "Acts of Congress." 
 
 CONNECTICUT, 
 
 statute of, 498, Appendix, 
 tax in, considered, 17. 
 exemptions under statute of, 86. 
 
 tangible and intangible property taxed in, 167, 168, 172, 193, 194. 
 nonresident decedents, taxation of, 166, 167. 
 appraisement of estates in, 225. 
 see "Exemptions." 
 
 CONSANGUINITY, 
 
 rules relating to, 133 (note). 
 
 CONSIDERATION, 
 
 transfer to avoid tax must be upon, 329.
 
 INDEX. 577 
 
 [References are to Pages.] 
 
 CONSTITUTIONALITY, 
 
 and nature of inheritance tax, 29, 72, 192 (note), 
 general power of state over taxation, 21). 
 
 tax constitutional, whether considered an inheritance or prop- 
 erty tax, 42, 192 (note). 
 is upon the privilege of succession to property, 30. 
 power of legislature to tax property by devise or descent, 31 
 
 et seq. 
 nature of tax under New York act of 1892, 38. 
 constitutional as a tax on a "commodity," in Massachusetts, 40. 
 under constitution of Minnesota, 40. 
 under federal income tax of 1894, 41. 
 under constitution of Maine, 36. 
 
 Michigan, 45. 
 
 New Hampshire, 70. 
 
 Ohio, 70. 
 
 New York, 34, 37, 38, 41, 42, 45, 51, 53. 62. 
 
 Tennessee, State v. Alston, Addenda, xix. 
 tax may be imposed until period of distribution, 56, 57. 
 state may give property special situs for taxation, 167, 16S. 
 power to tax may be delegated to municipal corporations, 72. 
 surrogates' courts, power of, to determine tax, 71. 
 no power to tax nonresident personally, 66, 67. 
 when tangible property of nonresident taxable, 66. 
 debt due from nonresident, 65. 
 when acts need not state object of tax, 51, 52. 
 titles to taxing acts, 51, 57. 
 when valid as a general or special tax, 45. 
 not a property tax, 41, 43. 
 when not a direct tax, 43. 
 
 direct tax upon foreign real estate, when void, 43, 45, 47. 
 foreign real estate, when taxable as personalty, 67. 
 as to being equal and uniform, 46, 50, 6S, 69. 
 terms "equal" and "uniform" defined, 47. 
 when void as unequal, 70, 71. 
 Ohio statute not equal and uniform, 48, 70. 
 not a poll tax, 46. 
 
 not prohibited as double taxation, 50. 
 not a taking of private property, 51. 
 law inker.— 37
 
 578 INDEX. 
 
 [References are to Pages.] 
 
 CONSTITUTIONALITY— Continued, 
 when to state object of tax, 51. 
 notice and hearing to be given, 52. 
 Maine statute provides for hearing, 52. 
 due process of law when not violated, 53. 
 as to being retroactive, 54. 
 when not ex post facto. 54. 
 
 retroactive taxes, when constitutional, 54 et seq. 
 not a tax upon exports or commerce, 57. 
 foreign legatees may be taxed, 57. 
 conflicting with treaty or alien rights, 58. 
 when statute void as conflicting with treaty, 58. 
 treaty with France, when not violated, 58, 59. 
 tax on government and state securities, valid, 59-61. 
 United States and municipalities, legacies to, taxable, 62, 64. 
 legatees, domicile as to personal property and its situs, 64, 68. 
 residents and nonresidents, when taxable, 65. 
 stocks and bonds of foreign corporations of nonresident dece- 
 dents in New York, when not taxable, 65, 66 (note), 
 exemptions, when constitutional, 68, 71. 
 exemptions to be general or special statute, 75, 94. 
 special tax upon all persons within a certain class, valid, 68. 
 constitutional rule for valuation of life estates, 72 (note). 
 
 CONSTRUCTION, 
 
 of statutes exempting from general taxation, 74. 
 
 of special tax laws, 75. 
 
 to be strict as to exemptions, 74. 
 
 of statutes imposing penalties, 411. 
 
 of amendatory statutes, 420. 
 
 of repealing statutes, 420. 
 
 CONSTRUCTIVE POSSESSION, 
 
 when legatee liable for tax upon, 393. 
 
 CONTEMPT OR ATTACHMENT PROCEEDINGS, 
 to collect tax, 355, 356, 391. 
 
 CONTINGENT AND FUTURE ESTATES, 
 
 appraisement and taxation of, 224 et seq., 264 et seq. 
 
 see "Appraisement"; "Remainders, Contingent and Future 
 Estates."
 
 INDEX. 579 
 
 [References are to Pages.] 
 
 -CONTINGENT ANNUITIES, 
 see "Annuities." 
 
 CONVERSION, 
 
 when property taxable under rule of equitable, 152, 158. 
 
 CONVEYANCES OR TRANSFERS, 
 
 to evade tax, 327 et seq. 
 
 see "Gifts inter Vivos and Causa Mortis." 
 
 CORPORATION, 
 
 when included in word "person," 112. 
 when exempt as almshouse, 101, 103, 104 et seq. 
 liability of, for transfer by foreign executors, etc., 371, 372. 
 see "Charitable and Religious Corporations"; "Exemptions." 
 
 CORPUS, 
 
 taxation of remainder when life tenant has disposition of, 286 
 (note 99), 242, 243, 325. 
 
 COSTS, 
 
 see "County Treasurer or Comptroller in New York County"; 
 "District Attorney." 
 
 COUNTIES, 
 
 legislature may delegate taxing power to, 72. 
 
 COUNTY TREASURER OR COMPTROLLER IN NEW YORK 
 
 COUNTY, 
 duty of, where tax unpaid, 356. 
 notice by, to district attorney, 357-359. 
 notice to, in proceedings by executor, 214. 
 costs of, when allowed, 362. 
 may apply for appraiser, 391. 
 
 must be notified of applications for appraiser, 391, 400. 
 to pay appraisers' fees, 362. 
 
 ex parte orders relieving from tax not binding upon, 399. 
 right of, to sue at law for tax, 362 (note), 391. 
 mandamus against, to compel payment of appraisers' fees, 209, 
 
 362. 
 commissions of, 362 (note), 
 effect of receipt of, for taxes, upon purchaser of real estate, 263. 
 
 394. 
 when to be made party upon appeal, 404.
 
 580 INDEX. 
 
 [References are to Pages.] 
 
 COVENANT, 
 
 action upon, by purchaser for taxes paid on land, 393, 394. 
 
 CREDITORS, 
 
 when liable for, duty in England, 347. 
 when not liable on bequest for debts, 344. 
 
 CUM ONERE, 
 
 when legacy taken, 392. 
 
 D 
 
 DAUGHTER, 
 
 word defined, 132. 
 husband of deceased, 131. 
 
 DEA1H, 
 
 by drowning, presumption as to survivorship, 133 (note). 
 
 any property passing at, liable, 418, 419. 
 
 exceptions to rule, 418, 419. 
 
 conveyances inter vivos and causa mortis to take effect after, 
 
 327 et seq. 
 appraisement of estates of decedents upon, 235, 243, 296. 
 
 DEBT, 
 
 tax considered as debt due the crown in England, 12, 390. 
 
 rule in England where there are debts abroad, 202. 
 
 action of, under Louisiana statute against heirs, 392. 
 
 action of, against executors, etc., 390. 
 
 exemption of, where left as legacies, 230, 343 et seq. 407. 
 
 test as to whether a legacy is for a debt or a gratuity, 344, 345. 
 
 where legacy not a gift, but payment of a valid claim, not tax- 
 able, 346, 347. 
 
 in England forgiveness of bonded debt by will liable to duty, 347. 
 
 legacy to creditors to pay debts of husband liable, 347. 
 
 when legacy for, taxable, 343, 345-347. 
 
 outlawed by statute of limitations, not taxable, 347. 
 
 deduction of debts from fair market value, rule in New York, 201 
 (note), 218, 220-222. 
 
 when mortgage debt may be deducted, 219, 220. 
 
 deduction of, in Pennsylvania, 241, 242 
 
 rules where nonresidents, exceed value of estate, 200, 201.
 
 INDEX. 581 
 
 [References are to Pages.] 
 
 DEBT— Continued, 
 
 proved after payment of tax, rule of recovery, 201, 202. 
 state may tax debt due from nonresident, 172 (note 102). 
 
 DECEDENT, 
 
 tax not generally charge upon estate of, 138, 139, 378. 
 when executrix incompetent to testify upon claims against, 383. 
 see "Legatees"; "Nonresident Decedents"; "Resident Dece- 
 dents." 
 
 DECREE, 
 
 of surrogate not binding unless parties notified, 355, 398, 400. 
 
 power of surrogate to enforce, against executors and legatees, 355. 
 
 obtained ex parte, when binding upon state, 354. 
 
 contempt proceedings for failure to pay tax under, 355, 391. 
 
 when not vacated by motion, 401. 
 
 effect of amendatory statute upon, 420, 421. 
 
 DEDUCTION, 
 
 of debts and expenses by appraiser, 221-223. 
 
 DEED TO DEFEAT TAX, 
 
 when within statute, 327, 329, 331, 332. 
 when not within statute, 334, 335. 
 under English statutes, 330, 336. 
 
 rights of vendee under, against grantor, for taxes paid, 409, 410, 
 see "Gifts inter Vivos and Causa Mortis." 
 
 DEFENSE, 
 
 by heir or legatee in proceeding to collect tax, 392. 
 
 DEFINITIONS, 
 
 almshouse, 92, 197, 101 et seq. 
 
 annuity, 266. 
 
 being within the commonwealth, 134 (note). 
 
 bequest, 100. 
 
 children, 120. 
 
 "clear market value," 201. 
 
 "clear value," 201. 
 
 "clear value of such estates," 201, 224. 
 
 "charitable purpose," 86. 
 
 collateral inheritance tax, 5. 
 
 endowment, 100. 
 
 estate, 134, 136, 138, 142, 229, 230, 2SL
 
 582 INDEX. 
 
 [References are to Pages.] 
 
 DEFINITIONS— Continued, 
 
 "exempted by law from taxation," 95, 96, 115, 
 
 fair and clear market value, 201, 224. 
 
 foreign legacies, 197. 
 
 forfeiture, 7, 40G. 
 
 general tax, 45. 
 
 gift, 100. 
 
 house of religious worship, 111, 112. 
 
 incorporated companies, 99. 
 
 intangible property, 173, and note. 
 
 legacy, 144, 266, 343. 
 
 legacy and succession tax, 5, 7, 8, 30, 31. 
 
 lineal and lawful descendants, 132. 
 
 party interested, 397. 
 
 penalty, 7, 406 (note). 
 
 person, 112. 
 
 persons interested, 357 (note), 359 (note). 
 
 poll tax, 46. 
 
 poorhouse, 102. 
 
 property, 136, 138, 229, 230, 28L 
 
 property tax, 41. 
 
 public library, 112. 
 
 public worship, 112. 
 
 schoolhouse, 112. 
 
 seminary of learning, 111. 
 
 special tax, 45. 
 
 "strangers to the blood," 131. 
 
 succession, 134, 274. 
 
 "successor," under English acts, 273, 274. 
 
 succession tax, 5. 
 
 tangible property, 173, and note. 
 
 "then valuation of the legacy or devise," 240. 
 
 transfer, 137, 140, 244 (note). 
 
 unavoidable cause of delay, 413, 414, 416. 
 
 "valuable and adequate consideration," 329. 
 
 widow, 131. 
 
 DELAWARE, 
 
 tax in, considered, 17. 
 ^•motions under statute of, 85.
 
 INDEX. 583 
 
 [References are to Fages.] 
 
 DELAY, 
 
 unavoidable cause of, in settling estate, effect of, 413, 416. 
 
 DELEGATION, 
 
 by state to counties of taxing powers, when valid, 72. 
 
 DEMAND, 
 
 for payment of tax, when necessary, 359 (note 52), 396 (note), 410. 
 
 DENMARK, 
 
 succession taxes in, 2. 
 
 DE NOVO, 
 
 when proceedings returned to appraisers as, 263. 
 
 DESCENDANTS, 
 
 see "Exemptions"; "Lineal and Lawful Descendants." 
 
 DESCENT, 
 
 power of legislature to tax property by, 32, 33. 
 
 DEVISE, 
 
 power of legislature to tax property by, 32, 
 when "free" or "clear" of tax, 379 et seq. 
 
 DEVISEE, 
 
 tax primarily charged upon estate of, 377, 3S0. 
 liable to executor for tax, 391. 
 not liable unless he accepts legacy, 392. 
 constructive possession makes liable, 393. 
 
 as to, when succession taxes are chargeable against, 3S0 (note), 
 when not relieved from tax, by will, 378, 380. 
 when relieved by will from tax, executor liable, 379, 380. 
 when taking land, liable for tax, 381. 
 alien, liability of, 393. 
 see "Legatees." 
 
 DEVOLUTION. 
 
 succession or legacy tax upon, 6. 
 
 DIRECT TAX, 
 
 when legacy and succession tax not, 43. 
 
 when tax upon foreign real estate deemed void as, 43 et seq., 67. 
 
 DISCHARGE. 
 
 when receipt does not, as to executor, 375, 376, 399.
 
 584 INDEX. 
 
 [References are to Pages.] 
 
 DISCRIMINATION, 
 
 in favor of nonresidents, not favored, 1G7, 170. 
 policy of tax laws to prevent, 192, 196. 
 see "Nonresident Decedents." 
 
 DISINHERITED SON, 
 
 moneys paid to, by executor, when not taxable, 384. 
 
 DISPENSARIES, 
 
 exemption of, 92, 97. 
 
 DISPOSITION, 
 
 of property, what constitutes, withiu English acts, 330 (note). 
 
 DISTRIBUTION, 
 
 power of state to tax until final, 56, 57. 
 
 DISTRICT ATTORNEY, 
 
 in New York, duty of, where tax unpaid, 356-358, 391, 395, 397. 
 
 method of procedure by, 395-397. 
 
 when county treasurer and district attorney may proceed to col- 
 lect, 358. 
 
 citation by, to compel payment of tax, 357. 
 
 citation, upon whom to be served, 358. 
 
 service of citation regulated by Code, 357. 
 
 duty of surrogate as to, 357. 
 
 cannot be begun until notified by county treasurer or comptroller, 
 359 (note). 
 
 hearing and enforcement of decree, 357. 
 
 liability to tax may be determined in proceeding by, 358. 
 
 proceeding to be instituted in name of, 35S. 
 
 when proceeding by, has precedence, 35S. 
 
 proceedings void when persons interested not notified by, 359. 
 
 when proper party upon accounting of executor, 359, 397. 
 
 cannot compel payment until 18 months under act of 1887, 360. 
 
 executor or trustee personally liable for costs of, 360. 
 
 amount of costs of, 360, and note 59. 
 
 not entitled to costs unless successful, 360, 361. 
 
 application of, for costs, when insufficient, 360, 361. 
 
 forms used by, under New York statute, 527 et seq. 
 see "Remedy and Practice." 
 
 DIVIDENDS, 
 
 corporations making, when taxable, 84.
 
 INDEX. 5 80 
 
 [References are to Pages.] 
 
 DOMICILE, 
 
 doctrine of, considered, 169, 195, 19G. 
 
 comments of Lord Brougham upon doctrine of, 162. 
 
 doctrine of, as to personal property, when first applied, 161. 
 
 rule as to, under English acts, 159-166. 
 
 when succession duty not effected by, 158. 
 
 right to tax does not depend upon, 170. 
 
 liability of real estate not affected by, 165. 
 
 considered with reference to taxation of nonresidents in New York 
 
 and elsewhere, 192-194. 
 foreigners acquiring new, liable to tax, 164, 166. 
 doctrine of, when not followed in United States, 166. 
 rule of, as affecting foreign legacies, 197. 
 rules where there are debts at, 19S et seq. 
 presumed to continue, 158. 
 
 when declaration of decedent controlling as to, 158. 
 change of, how acquired, 158. 
 facts sufficient to show change of, 166 (note), 
 effect of change of, under acts of congress, 158. 
 
 see "Constitutionality"; "Nonresident Decedents"; "Resident 
 Decedents." 
 
 DOMICILE AND SITUS, 
 
 general rules as to, 64, 145, 159 et seq. 
 
 what facts sufficient to show change of domicile, 166 (note), 
 see "Nonresident Decedents"; "Resident Decedents." 
 
 DOUBLE TAXATION, 
 rules as to, 50, 187, 193. 
 constitutional, 187. 
 questions of public policy involved in, 187. 
 
 DO WELL, 
 
 history of taxation in England, 12. 
 
 DOWER, 
 
 when not taxable, 131. 
 
 DUE PROCESS OF LAW, 
 
 when not violated by these acts. 53.
 
 00(0 INDEX. 
 
 [References are to Pages.] 
 
 E 
 
 ECCLESIASTICAL CORPORATIONS, 
 
 exemption of, in New York and Connecticut, 83, 84, 86, 92, 97. 
 
 EDUCATIONAL CORPORATIONS, 
 exemption of, 83, 84, 8G, 92, 97. 
 
 ELECTION, 
 
 given remainder-man to pay tax or file bond, 319. 
 of remainder-man to file bond, when waived, 321. 
 
 ENDOWMENT, 
 defined, 100. 
 
 ENGLAND, 
 
 history of legacy, succession, and estate duty in, 4, 8, 12, 13. 
 
 Lord North adopted the Roman system, 8, 9. 
 
 succession duty originated by Gladstone, 9. 
 
 scope of succession duty act, 10. 
 
 list of English authors on legacy, estate, and succession duties, 
 
 11 (note), 12. 
 revenues derived in, 11, 12. 
 duties imposed by legacy act, 12 (note). 
 
 by succession act, 12 (note), 
 conflict in courts of, as to taxing property of nonresidents, 147. 
 taxation of remainders and future estates in, 273, 274. 
 exemption of charitable institutions in, 10. 
 
 EQUAL AND UNIFORM, 
 
 inheritance tax, valid as, 46. 
 
 when tax void as not being, 46 (note), 48. 
 
 EQUALITY, 
 
 favored under legacy tax laws, 167. 
 
 EQUITABLE CONVERSION, 
 
 when real estate taxable under doctrine of, 152, 158, 371. 
 doctrine in England as to, 153, 371. 
 
 New York, 153, 154-371. 
 
 Pennsylvania, 155-158, 371. 
 
 EQUITY, 
 
 bill in, to recover tax, when maintainable, 389.
 
 INDEX. 587 
 
 [References are to Pages.] 
 
 ESTATE, 
 
 defined, 134-136, 230, 378. 
 of decedent, when liable for tax, 379. 
 
 estates in possession and expectancy, New York Revised Stat- 
 utes as to, 279 (note), 
 small estates, exemption of, 134, 138-140, 142, 229, 230. 
 
 see "Exemptions"; "Nonresident Decedents"; "Resident De- 
 cedents." 
 
 ESTATE DUTY, 
 
 in England, act of 1SS9, 11. 
 
 ESTOPPEL, 
 
 when receipts for taxes not an, 399. 
 
 what constitutes, against alien devisee. 393. 
 
 EVIDENCE, 
 
 power of surrogate in New York to take, 401. 
 when certificate of superintendent of insurance as to value con- 
 clusive, 225, 280, 281. 
 
 EXECUTION, 
 
 rights of vendee to property sold under, 409, 410. 
 to issue before contempt proceedings begun against executor, 
 355, 356. 
 
 EXECUTORS, 
 
 deemed agents of state in Pennsylvania, 374. 
 duty of regarding inheritance tax, 363 (note), 374. 
 compensation or commission of, when exempt, 83, 84, 87-S9, 366- 
 
 368. 
 entitled to notice of appraisement, 369, 400. 
 primary duty of, to apply for appraiser, 368, 369, 397. 
 effect of decree made in proceedings by, without notice to state, 
 
 375, 376. 
 application of, for appraiser, when dismissed, 397. 
 notice to parties in proceedings by, 369. 
 liability of, to pay tax, perpetual in Pennsylvania, 374. 
 penalty for neglect to pay tax chargeable to, 374. 
 to give bond to pay tax, 363. 
 to deduct tax from legacy, 364, 365, 369, 372. 
 cannot deliver legacy until tax collected, 364, 365, 369. 
 cannot deliver specific taxable property until tax collected, 365.
 
 588 INDEX. 
 
 [References are to Pages.] 
 
 EXECUTORS— Continued, 
 
 may sell property to pay tax, 364, 365. 
 
 when tax payable by, in New York, 363. 
 
 receipt to for payment, form of, 364. 
 
 cannot have final accounting where tax unpaid, 364. 
 
 when justified in paying legacies without deducting tax, 365. 
 
 must collect tax from personal property in his hands, 365. 
 
 when cannot be compelled to pay tax upon a devise of land to 
 himself, 372. 
 
 when coexecutors liable for payment of tax upon share of, 372. 
 
 cannot maintain action against legatee for recovery of tax on 
 personal property, 365, 366. 
 
 directed to continue partnership business until it could be dis- 
 posed of to advantage, when tax on payable, 366. 
 
 liability of, not determined on motion of, 376. 
 
 discretionary power of, to use principal for life tenant, 287. 
 
 receipt for taxes "in full" given by register, when it protects, 
 376. 
 
 common-law liability of, 388. 
 
 actions against, under various statutes, 3SS-392. 
 
 action at law by county treasurer against, 381, 382, 391. 
 
 liability of, in personam, under English acts, 373, 389-392. 
 
 where legacy or annuity relieved by will from tax, executor 
 liable, 379. 
 
 provisions of will releasing legacies also applies to legacies in 
 codicil, 379. 
 
 cannot pay tax in New York as part of expenses of administra- 
 tion under directions in will, 379, 380. 
 
 on settlement of executor's account error to direct part of estate 
 to be held to pay legacy taxes, 380 (note 164). 
 
 where will releases legatee from duty, must be paid by, 379. 
 
 personal liability of, for tax, 363, 373, 3S9. 
 
 when personally liable for tax under New York statute, 365, 
 374, 375, 390, 391. 
 
 rule as to payment of tax by, in Pennsylvania, 374. 
 
 personal liability of, in Pennsylvania, 374. 
 
 liability of, and legatee, under acts of congress, 373, 374, 3S8, 
 389. 
 
 liability of, for tax, under power of appointment, 3S0. 
 
 frauds by, upon the estate, when legatee not liable for, 383.
 
 INDEX. 589 
 
 [References are to Pages.] 
 
 EXECUTORS— Continued, 
 
 when executrix incompetent to testify in her own behalf for claim 
 
 on estate, 383. 
 when protected for paying tax upon legacy to infant, 382. 
 when to pay tax on real estate, 374. 
 not to pay tax on real estate where it passes to heirs directly, 372, 
 
 381. 
 when not liable for tax upon foreign real estate, 371. 
 liability of for proceeds of foreign real estate, 371. 
 rule in Pennsylvania regarding foreign real estate, 371. 
 payment of tax by, where will directs foreign real estate to be 
 
 converted into personalty, 371. 
 proceedings against, by district attorney, to collect tax, 357-360. 
 district attorney proper party upon final accounting of, 359. 
 on final settlement of accounts, error to direct part of estate to 
 
 be held to pay legacy taxes, 380 (note), 
 contempt or attachment proceedings against, 391. 
 liability of legatee to, by action at law, for taxes paid, 373, 381, 
 
 382. 
 jurisdiction of surrogate in action at law by, 382. 
 payment of legacy out of property of, when not taxable against, 
 
 382, 383. 
 compromise between, and legatee, 383. 
 when liable for interest, 415 (note), 
 resisting state's claim, chargeable with interest, 412. 
 when personally liable for costs of district attorney, 360. 
 when relieved from penalty and interest, 262, 413 et seq. 
 when petition for remission of penalty insufficient, 416. 
 application of, for refund of tax paid in error, 403, 404. 
 foreign, when liable for stocks and loans transferred, 370 (note 
 
 109), 371, 372. 
 failure to sell seat in stock exchange, 417. 
 foreign, liability of, for tax, 370, 371. 
 commissions of, when not taxable, 306. 
 when renounced by, 366. 
 when taxable, 366. 
 extra compensation to, in addition to commissions, 366. 
 reasonable compensation in lieu of commissions to, 367. 
 when state may inquire into services of, 367. 
 burden upon, to prove value of services, 367.
 
 590 INDEX. 
 
 [References are to Pages.] 
 
 EXECUTORS— Continued, 
 
 provision for, in lieu of commissions, accounting to be had, 367. 
 not legally entitled to commissions and expenses until an ac- 
 counting, 368 (note). 
 
 "EXEMPTED BY LAW PROM TAXATION," 
 
 denned, 95, 96, 98, 110. 
 
 EXEMPTIONS, 
 
 taxation the general rule, 74. 
 
 when in the discretion of the legislature, 141. 
 
 policy of inheritance and succession tax laws against, 75, 134. 
 
 when constitutional, 68. 
 
 when liberal construction to be followed in granting, 74. 
 
 statutes granting, when strictly construed, 75. 
 
 to be by general or special law, 75, 94. 
 
 from property tax do not relieve from succession tax, 94. 
 
 foreign corporations and governments, when not exempted, 115. 
 
 of small estates, 134. 
 
 rule in Maine, 140. 
 
 in New York, estates of $250 and $10,000, 134 et seq., 138-140, 
 
 229, 230. 
 must include the whole estate, 135, 136, 139, 140. 
 in Ohio, when under $20,000, 134. 
 in Pennsylvania, estates under $250, 142, 230. 
 must include the whole estate, 142, 230. 
 acts of congress, 14, 76, 144. 
 adopted children, 120, 122, 123. 
 appraiser not to report, 213. 
 aliens, foreign legatees, and nonresidents, 133. 
 almshouses, 92, 97-99, 101, 103, 104, 108, 109. 
 American statutes, 13, 68, 75, 83, 92. 
 animals, societies to protect, 83, 92. 
 benefit societies, 83, 92. 
 cemeteries, 92. 
 
 charitable and religious corporations, 83, 92, 106. 
 Christian associations, 83, 92. 
 churches, 83. 
 
 not exempt as "incorporated" companies, 97, 98. 
 colleges, 97, 98. 
 •corporations having income not exempt, 84.
 
 INDEX. 591 
 
 [References are to Pages.] 
 
 EXEMPTIONS— Continued, 
 debt left as legacy, 343. 
 dispensaries, 92. 
 English statutes, 75. 
 
 enumeration of statutory exemptions, 75, 76, 106. 
 executor's compensation, 366. 
 executor, trust to, 336. 
 foreigners under English statutes, 65, 66. 
 foreign real estate, 143. 
 government and state bonds, 59, 174, 177. 
 hospitals, 92. 
 homes, 92. 
 
 houses of industry, 92. 
 incorporated companies, 97, 98. 
 insurance societies, 92. 
 legacies for masses, 92. 
 legacies subject of secret trust, 92. 
 museums of history and art, 99. 
 orphan asylums, 92. 
 
 public libraries, 92, 95 (note), 97, 99, 101. 
 
 retroactive statutes as to adopted children, 55 (note), 120, 421, 422. 
 Roman law, 7. 
 
 state certificates, 59, 174, 177. 
 California, 87. 
 
 adopted child or children, 87. 
 
 brother, 87. 
 
 bequests to executors, 87. 
 
 estates of less than $500, 87. 
 
 father, 87. 
 
 husband of daughter, 87. 
 
 husband, 87. 
 
 lawful issue, 87. 
 
 lineal descendants born in lawful wedlock, 87. 
 
 societies, etc., exempt from taxation, 87. 
 
 wife or widow of son, 87. 
 Connecticut, 86. 
 
 adopted children and descendants, 86. 
 
 benevolent corporations, 86. 
 
 bequests for charitable and public purposes, 86. 
 
 ecclesiastical corporations, 86.
 
 592 INDEX. 
 
 [References are to Pages.] 
 
 EXEMPTIONS— Continued, 
 
 educational corporations, 86. 
 
 estates under $1,000, 86. 
 
 father, 86. 
 
 husband, 86. 
 
 husband of daughter, 86. 
 
 lineal descendants, 86. 
 
 missionary corporation or object, 80. 
 
 mother, 86. 
 
 public purposes, 86. 
 
 wife or widow of son, 86. 
 Delaware, 85. 
 
 children, 85. 
 
 estates under $500, 85. 
 
 father, 85. 
 
 lineal .descendants, 85. 
 
 mother, 85. 
 
 wife, 85. 
 Illinois, 90, 91. 
 
 mother, 91. 
 
 father, 91. 
 
 husband, 91. 
 
 wife, 91. 
 
 brother and sister, 91. 
 
 widow of son, 91. 
 
 lineal descendant, 91. 
 Maine, 87. 
 
 adopted child, 87. 
 
 bequests to executors, 87. 
 
 educational, charitable, etc., institutions, 87. 
 
 estates above $500, 87. 
 
 executor's commissions, 87. 
 
 father, 87. 
 
 husband, 87. 
 
 husband of daughter, 87. 
 
 lineal descendant of adopted child, 87. 
 
 mother, 87. 
 
 wife, 87. 
 
 wife or widow of sou, 87.
 
 INDEX. 593 
 
 [References are to Pages.] 
 
 EXEMPTIONS— Continued, 
 Maryland, 85. 
 
 children, 85. 
 
 estates under $500, 85. 
 
 father, 85. 
 
 husband, 85. 
 
 lineal descendants, 85. 
 
 mother, 85. 
 
 wife, 85. 
 Massachusetts, 88. 
 
 adopted child, 88. 
 
 brother, 88. 
 
 charitable, etc., institutions, 88. 
 
 estates of less than $10,000, 88. 
 
 executor's compensation, 88. 
 
 father, 88. 
 
 husband, 88. 
 
 husband of decedent's daughter, 88. 
 
 lineal descendant, 88. 
 
 lineal descendant of mother, adopted child, 88. 
 
 wife, 88. 
 
 wife or widow of son, 88. 
 New Jersey, 88. 
 
 brother or sister, 88. 
 
 children, 88. 
 
 churches, hospitals, etc., 88. 
 
 estates under $500, 88. 
 
 father, 88. 
 
 husband, 88. 
 
 husband of daughter, 88. 
 
 lineal descendants born in wedlock, 88. 
 
 mother, 88. 
 
 wife, 88. 
 
 wife or widow of son, 88. 
 New York, 77-84. 
 
 enumeration of exemptions in, under general statutes, 77. 
 
 exemptions under collateral tax act of 1887, 79. 
 
 exemptions under the act of 1892, 80, S4. 
 
 religious and other corporations under act of 1890, 83. 
 law inher. — 38
 
 594 INDEX. 
 
 [References are to Pages.} 
 
 EXEMPTIONS— Continued. 
 
 to be by general or special statute, 93, 94, 96. 
 
 almshouses, 97, 101. 
 
 almshouses, what institutions are, 97, 101, 102, 103, 104, 108. 
 
 almshouses defined, 101. 
 
 asylums, 97. 
 
 beneficiary society, 113. 
 
 benevolent societies, 84. 
 
 Bible societies, 83. 
 
 bishops, 95. 
 
 boards of foreign missions, 99. 
 
 Brooklyn public library, 99. 
 
 buildings for public worship, 97. 
 
 business corporations not, 84. 
 
 cemeteries, 97, 105. 
 
 charitable corporations, 98, 106, 107. 
 
 children's aid societies, 84. 
 
 church, when not, 93, 97, 98. 
 
 college buildings, 99. 
 
 college not exempt as "incorporated company," 98, 99, 107. 
 
 colleges not exempt by general law, 93, 97, 99, 108. 
 
 Columbia College, 09. 
 
 corporations exempt from general taxation, 83. 
 
 courthouse and jail, 78. 
 
 dispensaries, 92, 97. 
 
 educational societies, 83. 
 
 executor's bequest to, in lieu of commissions, 83, 84, 87-89, 
 
 366-368, 374. 
 foreign religious, etc., corporations, 99, 100, 106, 115. 
 foreigners, investments of, 147 (note), 
 funeral expenses for burial plot, 113. 
 geographical society as a public library, 112. 
 homes for seamen, 78, 97, 101. 
 hospital exempt as almshouse, 97, 99, 110. 
 houses for public worship, 101. 
 homes for aged, 105, 108. 
 homes for poor, 101. 
 homes of industry, 78. 
 "incorporated companies," 98, 99, 107. 
 income, effect of upon exemptions, 110.
 
 ikdex. 595 
 
 [References are to Pages.] 
 
 EXEMPTIONS— Continued, 
 
 illegitimate children, 120, 130. 
 
 infirmaries, 84. 
 
 legacies to collaterals less than $500, 83, 134 et seq., 343 
 
 (note), 
 lineal heirs, estates of less than $10,000, 83, 134 et seq. 
 literary corporations, 84. 
 masses, legacies for, 98, 113. 
 missionary societies, 84, 10G. 
 monied corporations not, 84. 
 museums of art and history, 99. 
 
 mutually acknowledged relation of parent, 82, 123-129. 
 mutual benefit assurance association, 113. 
 orphan asylums, 101. 
 Paulist Fathers, 10(3. 
 poorhouses, 97, 101. 
 
 profit, corporations making, not exempt, 84. 
 public libraries, 92, 95, 97, 99, 101. 
 public worship, buildings for, 97, 112. 
 reformatories, 78. 
 religious corporations, 95, 98, 99. 
 retroactive exemptions, 80 (note), 418, 421, 422. 
 scientific societies, 84. 
 schoolhouses, 78, 101, 112. 
 seamen, society to improve, 78. 
 seminary of learning, 78. 
 societies to protect animals, 84. 
 stock corporations not, 84. 
 tract societies, 84. 
 trust property, when exempt, 133. 
 United States government, 84 (note 40), 115. 
 Young Men's Christian Association, 111. 
 North Carolina, S6. 
 
 ancestor of husband or wife, 86. 
 
 brother, 86. 
 
 charitable institutions not exempt, 100. 
 
 churches not exempt in, 100. 
 
 colleges not exempt in, 108. 
 
 husband, 86. 
 
 lineal descendants, 86.
 
 596 INDEX. 
 
 [References are to Pages.] 
 
 EXEM PTI N S— Continued, 
 
 sister, 86. 
 
 wife, 86. 
 Ohio, 88-90. 
 
 adopted child, 89. 
 
 bequests to executors, 89. 
 
 brother, 89. 
 
 father, 89. 
 
 husband, 89. 
 
 husband of daughter, 89. 
 
 lineal descendants, 89. 
 of adopted child, 89. 
 
 mother, 89. 
 
 person recognized as adopted child, 89. 
 
 lineal descendants of, 89. 
 
 wife, 89. 
 
 wife or widow of son, 89. 
 
 $200 from appraised value, 89. 
 Pennsylvania, 84. 
 
 adopted children, 84, 120. 
 
 bequests to executors in lieu of commissions, 84. 
 
 burial places, 84. 
 
 children, 84. 
 
 charitable institutions, when not, 100. 
 
 charitable institutions making profit, 84. 
 
 college as public charity, 111. 
 
 constitutional provisions as to, 84 (note), 110. 
 
 dower, 131. 
 
 estates of less than $230, 84. 
 
 executors, bequests to, in lieu of commissions, 84. 
 
 father, 84. 
 
 grandmother, when not as next of kin, 132. 
 
 gift, bequest, or endowment, 100. 
 
 graves, bequest to keep in order, 113. 
 
 illegitimate children, 120, 130. 
 
 legitimation by act of legislature, 130. 
 
 lineal descendants, 84. 
 
 masses, bequest for, 113. 
 
 mortgage of nonresident decedent upon real estate, 177. 
 
 mother, 84.
 
 INDEX. h 9 7 
 
 [References are to Pages.] 
 
 EXEMPTIONS— Continued, 
 
 nonresident, stock and bonds of, 177. 
 
 places of religious worship. 84, 85 (note). 
 
 property under power of appointment, 133. 
 
 public chanties, 84, 85 (note). 
 
 public property, 84, 85 (note). 
 
 widows, 84. 
 
 Wife, 84. 
 
 wife or widow of son, 84. 
 Tennessee, 90. 
 
 brothers, 90. 
 
 children, 90. 
 
 daughters-indaw, 90. 
 
 father, 90. 
 
 grandchildren, 90. 
 
 husband or wife, 90. 
 
 mother, 90. 
 
 sisters, 90. 
 
 sons-indaw, 90. 
 
 wife, 90. 
 Virginia, 85. 
 
 brothers, 85. 
 
 charitable institutions, 93, 94. 
 
 churches not exempt in, 100. 
 
 colleges, 100. 
 
 father, 85. 
 
 husband, 85. 
 
 lineal descendants, 85. 
 
 mother, 85. 
 
 nephews, 85. 
 
 nieces, 85. 
 
 orphan asylums, 111. 
 
 sisters, 85. 
 
 surviving husband, 85. 
 
 wife, 85. 
 West Virginia, 85. 
 
 children, 85. 
 
 estates under $1,000, 85. 
 
 father, 85. 
 
 lineal descendants, 85.
 
 598 index. 
 
 [References are to Pages.] 
 
 EXEMPTIONS— Continued, 
 mother, 85. 
 wife, 85. 
 
 see "Nonresident Decedents"; "Resident Decedents." 
 
 EX PARTE DECREES, 
 
 when not binding upon public officers, 399. 
 
 EXPERT APPRAISERS, 
 
 when may be appointed in Pennsylvania, 210, Appendix, 475. 
 
 EXPORTS, 
 
 or commerce, when tax not upon, 57. 
 
 EX POST FACTO, 
 
 when legacy acts not void as, 54. 
 
 F 
 
 FACT, 
 
 findings of, under New York statute, 402 (note). 
 
 "FAIR MARKET VALUE," 
 
 see "Appraisement"; "Appraisers." 
 
 FATHER, 
 
 See "Exemptions." 
 
 FEE, 
 
 estates in, duty of appraiser as to, 209. 
 
 FEES, 
 
 of county treasurers, of appraiser, see "Appraisers"; "County 
 Treasurer," etc. 
 
 FEUDAL SYSTEM, 
 
 succession tax under, 8. 
 
 FINANCE ACT, 
 
 taxing real and personal property under English law 1894, 11 
 et seq. 
 
 FINCH, JUSTICE, 
 
 opinion of collateral tax, 3 (note). 
 
 FINDINGS OF FACT, 
 
 necessity for, 402 (note). 
 
 FOREIGN CORPORATIONS AND GOVERNMENTS, 
 legacies to, taxable, 115.
 
 INDEX. 599 
 
 [References are to Pages.] 
 
 FOREIGN DOMICILE, 
 
 See "Domicile"; "Nonresidents." 
 
 FOREIGNERS, 
 
 tax upon legacies to, valid, 64, 65. 
 
 investment property of, when exempt in New York, 147 (note). 
 liability of, to tax in England, per Jessel, M. R., 164-166. 
 when not relieved from penalty as, 415. 
 see "Nonresident Decedents." 
 
 FOREIGN EXECUTORS, 
 
 liability of, for tax, 174, 175. 
 transferring stock within state, 174, 370-372. 
 see "Executors." 
 
 FOREIGN HEIRS, 
 
 action of debt against, for taxes, 392. 
 FOREIGN LEGACIES, 
 
 liability of, in England, to tax, 160, 161. 
 
 when not taxable, 197. 
 
 FOREIGN LEGATEES, 
 when liable to tax, 133. 
 
 see "Constitutionality"; "Nonresident Decedents." 
 
 FOREIGN REAL ESTATE, 
 
 tax upon, when void as direct tax, 43 et seq., 143. 
 liability of, to tax, 143. 
 
 when taxable as personalty, under doctrine of equitable conver- 
 sion, 143, 144, 152. 
 see "Real Estate." 
 
 FOREIGN, RELIGIOUS, AND OTHER CORPORATIONS, 
 when not exempt from tax, 99, 100, 106. 
 
 FORFEITURE, 
 
 when tax not a, 7, 406. 
 
 FORMS, 
 
 under laws of New York, 386 (note) ; Appendix, 527 et seq. 
 FRANCE, 
 
 succession taxes in, 2. 
 FRAUD, 
 
 effect of, upon receipt for taxes, 377, 399. 
 
 effect of, upon appraiser's report, 25S, 259.
 
 GOO INDEX. 
 
 [References are to Pages.] 
 
 FRAUD -Continued, 
 
 another appraisement allowed for, 258, 259. 
 see "Remedy and Practice." 
 
 FRAUDULENT TRANSFERS, 
 
 liability of, to tax, 31, 327, 330. 
 when a misdemeanor to make, 328. 
 
 see "Gifts inter Vivos and Causa Mortis." 
 
 FREE OR CLEAR OF TAX, 
 
 when legacy is, 377, 378. 
 
 FRENCH SPOLIATION CLAIMS, 
 
 money arising from, not taxable, 144. 
 
 FUTURE ESTATES, 
 
 appraisement and taxation of, 224 et seq.; 264 et seq. 
 
 see "Appraisement"; "Remainders, Contingent and Future 
 Estates." 
 
 G 
 
 GENERAL GUARDIAN, 
 
 payment of tax by executor with knowledge of, 382. 
 
 GENERAL LAWS, 
 
 exemptions by, 94-96. 
 
 exemption of charitable institutions under, 97-99. 
 
 GENERAL OR SPECIAL TAX, 
 legacy laws valid as, 45. 
 
 GENERAL TAX LAWS, 
 
 do not restrict the inheritance tax. 208. 
 
 GEOGRAPHICAL SOCIETY, 
 
 exemption of, as public library, 112. 
 
 GERMANY, 
 
 inheritance taxes in, 2. 
 
 GIBBON, EDWARD, 
 
 upon English succession tax, 7, 8, 
 
 GIFT, 
 
 defined, 100.
 
 INDEX. G01 
 
 [References are to Pages.] 
 
 GIFTS INTER VIVOS AND CAUSA MORTIS, 
 
 statutory provisions concerning, 31, 327-330. 
 
 provisions of New York Act 1892, 327, 328. 
 
 act of North Carolina as to fraudulent gifts, 328. 
 
 general rule as to such gifts or grants, 5, 329. 
 
 effect of bona fide conveyance during lifetime, 329. 
 
 rule as to, under acts of congress, 329. 
 
 taxation of, under English acts, 329, 330, 330, 338 (note). 
 
 donatio mortis causa, 330. 
 
 gifts inter vivos made 12 months before death, 330. 
 
 gifts made any time, where donor retains any interest, 330. 
 
 joint interests vesting in survivor, 330. 
 
 property settled with a life interest, 330. 
 
 property where grantor has power of revocation, 330. 
 
 transfer by, not invalidated, 330. 
 
 fund liable in hands of cestui que trust, 330. 
 
 need not be intentional or fraudulent, 330. 
 
 what deemed sufficient to subject these gifts to tax, 330. 
 
 statute includes most intricate transfers, 330. 
 
 tax payable on, where grantee clothed with mere legal title, 331. 
 
 what deeds within the statute, 331. 
 
 transfer where income for life is reserved to grantor, 331. 
 
 transfer of shares reserving dividends, 331. 
 
 assignment with right of revocation not exercised, 331. 
 
 deed of trust directing devise of property to collaterals and 
 charity, 331. 
 
 deed of trust reserving income, 332. 
 
 deed of trust, of stocks and bonds, to foreign corporation as trus- 
 tee, 332. 
 
 where gi-antor retains power of modification or revocation liable, 
 331, 333, 339. 
 
 cases within the statutes enumerated, 333, 334. 
 
 cases not within the statutes, 335, 336. 
 
 secret trusts to exempt persons or charitable corporations, 336, 
 337. 
 
 when property not liable passing under irrevocable trust deed, 
 337. 
 
 the law when the deed goes into effect should govern, 338. 
 
 similarity of Pennsylvania and New York statutes, 337, 338. 
 
 when taxable under New York act of 1892, 338.
 
 002 INDEX. 
 
 [Keferences are to Pages.] 
 
 GIFTS INTER VIVOS AND CAUSA MORTIS— Continued, 
 when made in contemplation of death of the grantor, 338. 
 or intended to take effect in enjoyment after death, 338. 
 gift causa mortis of a promissory note taxable, 338. 
 gift causa mortis of bank books taxable in Re Edwards, 338, 339. 
 New York statute construed, 338, 339. 
 rule under act of 1892 as to grants and gifts causa mortis, In re 
 
 Seaman, 32, 38, SO, 22S, 248, 254, 275, 280, 282, 285, 288, 304, 
 
 307, 308, 309, 352, Addenda. 
 
 GLADSTONE, 
 
 connection of, with succession duty act, 9. 
 
 GOOD FAITH, 
 
 appraisement made in, when conclusive, 258. 
 acts of executor done in, justifies payment of legacies without 
 deduction, 376. 
 
 GOVERNMENT BONDS, 
 
 tax upon passing of, constitutional, 59-61. 
 
 taxation of, does not conflict with federal law, 60. 
 
 property tax upon, when void, 59 (note 122). 
 
 statute of West Virginia as to public securities, 59 (note 122). 
 
 of foreign decedents, exempt in Pennsylvania, 177. 
 
 GOVERNMENTS AND MUNICIPALITIES, 
 legacies to, may be taxed by states, 62, 63. 
 
 GRADUATION, 
 
 principle of, in taxation of inheritances, 10 (note), 75. 
 comments of Gov. Hill upon, 20 (note). 
 
 GRANDMOTHER, 
 
 when not next of kin, 132. 
 
 GRANTOR. 
 
 transfers by, to evade tax, 327 et seq. 
 
 GRATUITY, 
 
 legacy as, taxable, 344, 347. 
 
 GRAVES, 
 
 bequest to keep in order, 113. 
 
 GREECE, 
 
 succession taxes in, 2.
 
 INDEX. 603 
 
 [References are to Pages.] 
 
 GUARDIAN AD LITEM, 
 
 when executor not liable to, for taxes paid for infant, 382. 
 
 GUATEMALA, 
 
 succession taxes in, 2. 
 
 H 
 
 HEARING, 
 
 right to notice and, 52, 358, 359, 400. 
 effect of failure to give, 401. 
 
 HEIRS, 
 
 rights of, where state fails to enforce lien, 408. 
 
 liability of, to executor, etc., 377-379. 
 
 liability of, to administrator for tax paid, 381. 
 
 liability of, for tax on real estate, 381. 
 
 when share of, "free" or "clear" of tax, 378, 379. 
 
 of resident decedents, 148 et seq. 
 
 of nonresident decedents, 159 et seq. 
 
 HILL, GOVERNOR, 
 
 messages to legislature on tax, 20, 21 (note). 
 
 HISTORY, 
 
 of inheritance and succession taxes, 2. 
 
 HOLLAND, 
 
 succession taxes in, 2. 
 
 HOMES, 
 
 when not almshouses, 107. 
 
 for the poor, exemption of, 92, 97. 
 
 for seamen, exemptions of, 97. 
 
 HOSPITALS, 
 
 exemption of, 84, 97, 102. 
 
 when exempt as almshouses, 102. 
 
 HOUSES OP INDUSTRY, 
 exemption of, 7, 78, 101. 
 
 HUSBAND, 
 
 see "Exemptions." 
 
 HUSBAND AND WIFE, 
 
 taxation of estates by entirety to, 227.
 
 604 INDEX. 
 
 [References are to Pages.] 
 
 ILLEGITIMATE CHILDREN, 
 liability of, to tax, 130, 131. 
 
 intention to relieve from tax to be clearly expressed, 130. 
 effect of legitimation by law, 130. 
 under the English law, 131. 
 subsequently legitimated, rate of duty, 131. 
 when chargeable with highest rate of duty, 131. 
 for a review of legislation in Pennsylvania upon the subject of. 
 130 (note), 
 see "Children." 
 
 ILLINOIS, 
 
 statute of 1895, Appendix, 518. 
 
 history of tax, 23. 
 
 exemptions under statute of, 90, 91. 
 
 appeals from taxing order in, how and when taken, 257. 
 
 IMPOST OR EXCISE, 
 
 when succession tax considered under federal law, 43. 
 
 INCOME, 
 
 of life tenant or annuitant, tax payable out of, 265, 270. 
 use of principal by life tenant to pay tax on, 270, 271. 
 when life tenant not taxed upon fund or, 266, 267. 
 corporations deriving, liable to tax, 83, 84. 
 see "Annuities"; "Life Tenants." 
 
 INCORPORATED COMPANIES, 
 denned, 97 et seq. 
 
 INCREASE, 
 
 or accretions after death, when tax not Imposed upon, 418, 419. 
 
 INFANTS, 
 
 when executor protected in paying tax on share of, 382. 
 to be represented by special guardian in the proceeding, 256, 258 
 (note). 
 
 INFIRMARIES, 
 
 exemption of, 84. 
 
 INFORMATION, 
 
 when tax collected by, 389.
 
 INDEX. b05 
 
 [References are to Pages.] 
 
 INHERITANCE TAX. 
 
 constitutional, whether imposed on property or the succession 
 thereto, 192 (note), 
 see "Constitutionality." 
 
 IN PERSONAM, 
 
 liability in, see "Administrators"; "Executors"; "Remedy and 
 Practice." 
 
 IN REM. 
 
 proceedings to collect tax, 388, 391. 
 
 INSURANCE, 
 
 policies of, on life, when taxable in New York, 114, 208, 259, 260. 
 
 bequest to mutual benefit association liable, 113. 
 
 money paid by beneficiary association to deceased member's next 
 
 of kin, 113, 114. 
 under the English law, 208 (note), 
 money from English customs benevolent fund for widows, etc., 
 
 not taxable, 114, 115. 
 when value of policies not reviewable, 259, 260. 
 under acts of congress, 208. 
 see "Policy of Insurance." 
 
 INTANGIBLE, 
 
 see "Tangible and Intangible Property." 
 
 INTEREST, 
 
 on taxes, not implied at law, 411. 
 
 added by way of penalty for default, 411. 
 
 interest under power of appointment, 417. 
 
 effect of receipt for taxes upon, 376, 377. 
 
 right of state to, not waived by receiving tax, 377, 417. 
 
 when receipt for tax does not estop state from recovering, 417. 
 
 not affected by probate proceedings, 415. 
 
 interest and penalty for nonpayment of tax, 411 et seq. 
 
 when penalty removed, interest charged from death, 415. 
 
 rule as to interest in New York under Act 1892, 415. 
 
 when executor liable for, 415 (note). 
 
 see "Penalty"; "Remedy and Practice." 
 
 INTER VIVOS, 
 
 gifts by, see "Gifts inter Vivos and Causa Mortis."
 
 006 INDEX. 
 
 [References are to Pages.J 
 
 INTESTACY, 
 
 heirs, not administrator, liable to pay tax in case of, 372. 
 
 INTESTATE LAW, 
 
 right to take under, taxable as a privilege, 5. 
 
 INTESTATES, 
 
 nonresident, when taxable, 65 (and note), 168, 169, 192, 193. 
 see "Nonresident Decedents"; "Resident Decedents." 
 
 ITALY. 
 
 succession taxes in, 2. 
 
 J 
 
 JOINT TENANTS, 
 
 liability of, to tax in England, 13 (note), 269. 
 
 JUDGMENT, . 
 
 as to appraisement and amount of tax, when final and conclu- 
 sive, 256 (note), 258. 
 
 JURISDICTION, 
 
 person or property to be within taxing state, 145, 146. 
 of state to tax estates of foreign decedents, 370, 371. 
 when state cannot tax foreign real estate, 143, 152-158. 
 no power to assess nonresidents personally, 146, 147. 
 exclusive, of surrogate to direct payment of tax, 348, 349, 352, 
 
 354 et seq., 394, 395. 
 when supreme court in New York has, 353, 395. 
 of surrogate, to order repayment of tax, 356. 
 tax to be paid in county where first acquired, 354. 
 see "Remedy and Practice." 
 
 JUSTIFICATION, 
 
 on part of legatee, for refusing to pay tax, 392. 
 
 L 
 
 LANDS, 
 
 and personal estate, where and bow appraised, 216-218 et seq., 411. 
 
 who liable for tax upon, 381. 
 
 alien devisee of, cannot set up devise is void, 393. 
 
 sold in separate lots, liability of, for tax, 410, 411. 
 
 lien of tax upon and rights of purchasers, 407, 410, 392-394.
 
 INDEX. 607 
 
 [References are to Pages.] 
 
 LANDS— Continued, 
 
 when sheriff cannot pay succession tax on, 393. 
 
 when taxable in equity as personalty, 152-15S. 
 
 taxation of, where owned by nonresident, 190. 
 see "Foreign Real Estate"; "Real Estate." 
 LAW. 
 
 conclusions of, under New York statute, 402 (note). 
 
 LAWFUL OR LINEAL DESCENDANTS, 
 who included within, 132. 
 
 LAYTON, 
 
 on English legacy duties, 11. 
 
 LEASEHOLD AND REAL ESTATE, 
 
 taxed irrespective of owner's domicile, 168 (note). 
 
 LEGACIES, 
 
 defined, 265, 266, 343 (and note 292). 
 
 subject to tax, 265, 266. 
 
 payable out of income, are annuities, 266. 
 
 in trust to carry on business of decedent, are taxable, 266. 
 
 when legacy includes real estate, 266. 
 
 how tax upon paid where residuary estate is insufficient, 267. 
 
 duty of appraiser as to, 209. 
 
 in money, appraisement of, not necessary, 229, 368 (note). 
 
 in payment of debts, not appraisable nor taxable, 231, 343, 344, 
 
 347. 
 to physician for services, when not exempt as a debt, 344. 
 of debt barred by statute of limitations, 347, 407. 
 when "free" or "clear" of tax, 343, 377, 378. 
 not liable to tax when renounced, 392, 393. 
 to charitable, religious, and other institutions, 92 et seq. 
 sent from abroad, when not taxable, 197. 
 to executors in lieu of commissions, when taxable. 343 (note 291) 
 
 366. 
 sums loaned by decedent to his sons, when considered taxable 
 as, 346. 
 see "Annuities"; "Exemptions"; "Remedy and Practice." 
 
 LEGACY ACT OF CONGRESS, 
 
 when legacies not taxable under, 14, 144. 
 see "Acts of Congress."
 
 608 INDEX. 
 
 [References are to Pages.] 
 
 LEGACY DUTY ACT, 
 
 origin and history of, in England, 8, 12. 
 
 exemptions under, 10, 11, 75, 92, 112. 
 
 doctrine of mobilia sequuntur personam under, regarding non 
 
 residents, 159 et seq. 
 limited to property within Great Britain, 161 et seq. 
 when English subjects dying abroad liable to, 166. 
 effect of change of domicile under, 158. 
 when property of nonresident liable to duty, 164-166. 
 when duty payable upon foreign real estate owned by partners, 
 
 162 et seq. 
 real estate of foreigners, when liable to, 165. 
 liability under, of assets sent to England, 160, 161. 
 authorities under, when rejected in United States, 168-171. 
 
 LEGACY TAX, 
 
 its nature and constitutionality, 2-5, 29, BO et seq. 
 its theory discussed, and the tax defined, 5, 7. 
 imposed upon privilege of inheritance, etc., 3-5, 29, 30 et seq. 
 compared with ordinary tax or duty, 5, 9, 60. 
 not a penalty or forfeiture, 6, 7, 60 (note 126), 406 (note 109). 
 its success as a means of revenue, 11 (note), 12. 
 as a means of revenue in the United States, 21 (note), 
 see "Constitutionality"; "Legacy Duty Act." 
 
 LEGAL FICTIONS, 
 
 proper use of, concerning taxation, 195, 196. 
 
 LEGATEES, 
 
 power of state to tax legacies to resident or alien, 64, 145, 148. 
 
 renouncing legacy, not liable, 392. 
 
 proof of renouncement, 392. 
 
 legacies to nonresident, 133, 159 et seq. 
 
 as to when duties are chargeable upon legatee's income, 380. 
 
 as to when taxes are chargeable against residuary legatees, 380 
 
 (note 146). 
 defense of, upon proceedings to collect, 392. 
 tax primary charge upon interest of, 377-379. 
 where will provides legatee shall pay taxes, 380. 
 liability of, for tax, when perpetual, 377. 
 personal liability of, for tax, 373, 388, 392. 
 when not personally liable under acts of congress, 373.
 
 INDEX. 609 
 
 [References are to Pages.] 
 
 LEGATEES— Continued, 
 
 when liable for constructive possession, 392, 393. 
 
 when disinherited son not liable, 384. 
 
 effect of compromise by, with executors, under acts of congress 
 
 and English law, 384, 385. 
 liability of, to executor for taxes paid, 373, 392, 393. 
 power of surrogate in New York to compel payment of tax by, 
 
 to executor, 356. 
 action in assumpsit against, by state, to collect tax, 389. 
 contempt or attachment proceedings against, 356. 
 when shares of "free" or "clear" of tax, 37S, 379. 
 entitled to notice and hearing, 400. 
 
 see "Legacy"; "Nonresident Legatees." 
 
 LEGISLATURE, 
 
 see "Constitutionality." 
 
 LEGITIMATION, 
 
 see "Illegitimate Children." 
 
 LENAGHAN, PATRICK, 
 treatise on legacy duty, 11. 
 
 LEX SITUS, 
 
 as considered by Justice Gray, 196. 
 LIABILITY, 
 
 of executors, administrators, trustees, legatees, etc., inter se, 
 363, 377 et seq. 
 
 LIBRARY, 
 
 see "Exemptions"; "Public Libraries." 
 LIEN, 
 
 defined, 405. 
 
 of tax and its effect, 405. 411. 
 
 under English statutes, 12, 405. 
 
 rights of bona fide purchasers protected from, 405. 
 
 taxes not generally, unless assessed, 405. 
 
 when taxes become statutory liens, 405. 
 
 when statute to be followed in enforcing, 3S8. 
 
 under acts of congress, 373, 38S, 410. 
 
 under New York statute, 405, 406. 
 
 under Illinois statute, 406. 
 
 when perpetual, against legatees, etc., 377, 407. 
 
 LAW INHEK- 39
 
 610 INDEX. 
 
 [References are to Pages.] 
 
 LIEN— Continued, 
 
 to what it attaches, 407. 
 
 under Pennsylvania statutes, 232, 406 et seq. 
 
 effect of neglect to enforce, 408. 
 
 effect of sale of land where tax is a, 393, 408, 409. 
 
 as to purchasers of real estate, 377, 393. 
 
 rights of bona fide purchasers, 408. 
 
 right of vendee paying tax, 409, 410. 
 
 when presumed to be paid as to heirs, etc., 409. 
 
 LIFE ESTATES, 
 
 and terms of years, appraisement of, under New York statute, 
 
 224 et seq. 
 appraisement of, in Connecticut, Maryland, Massachusetts, and 
 
 Pennsylvania, 225, 22G. 
 duty of surrogate and appraiser as to, 206, 209, 225. 
 liability of, to tax, 224, 225, 264. 
 constitutional rule as to valuation of, 224 (note), 
 see "Appraisement"; "Life Tenants." 
 
 LIFE TENANTS, 
 
 when and how tax payable by, 265, 270, 271. 
 
 right of, to use fund free from tax, 265. 
 
 tax to be upon clear value of interest at testator's death, 265, 266. 
 
 tax to be assessed and paid at once, 271 (note). 
 
 when not liable for tax upon contingent annuities, 266, 268. 
 
 bequest to widow for life or until she marries, not taxable, 268, 
 269. 
 
 when estate to husband and wife by the entirety taxable during 
 husband's life, 269. 
 
 liability of joint tenants in England, 269. 
 
 relative rights of, and remainder-man, 270. 
 
 and remainder-man pay tax separately, 270. 
 
 where life interest of, is exempt, whole tax payable by remain- 
 derman, 271, 272. 
 
 rule as to, and remainder-man paying tax, differ in New York 
 and Pennsylvania, 271. 
 
 when remainders, tax payable out of principal, 271, 272. 
 
 when remainder-man may anticipate tax, 271. 272. 
 
 when life estate not ended, no assessment or tax on remainder, 
 271, 272.
 
 INDEX. Gil 
 
 [References are to Pages.] 
 
 LIFE TENANTS— Continued, 
 
 devise of fee, and then of life estate, fee taxable, 272. 
 
 how value of life tenant's interest ascertained in Massachusetts, 
 272. 
 
 tax on remainder payable out of the principal, 272. 
 
 power of disposition, remainder not appraisable or taxable, 228, 
 242, 243, 268, 269, 339, 325. 
 
 liability of, for delay, 265. 
 
 where life tenant accelerated the succession with remainder- 
 man, all tax payable, 275. 
 
 life tenant directed to pay tax on legacies, 326. 
 
 legacy to wife for her support and for charitable purposes, tax 
 upon, 326. 
 
 confirmation of appraiser's report not postponed for, 263. 
 
 LIMITATIONS, 
 
 see "Remedy and Practice"; "Statute of Limitations." 
 LIMITED PARTNERSHIP, 
 
 when deceased nonresident's interest in, taxable in Pennsylvania, 
 179. 
 
 LINEAL AND LAWFUL DESCENDANTS, 
 
 who included within, 132. 
 
 taxed in New York, Ohio, and Illinois, 81, 88-90, 132. 
 in New Jersey, 132. 
 
 when brothers and sisters and children exempt, in Pennsylvania, 
 133. 
 
 LINEAL CONSANGUINITY, 
 
 rules relating to, 133 (note). 
 
 LITERARY CORPORATIONS, 
 
 exemption of, 84. 
 
 when not exempt as incorporated companies, 98. 
 
 LITIGATION, 
 
 effect of, upon penalty for delay, 413, 414, 415, 416. 
 
 LODGING, 
 
 when institution providing, exempt as almshouse, 97, 102. 
 
 LOTS, 
 
 sold separately, how tax paid upon, 410, 411. 
 see "Lands"; "Real Estate."
 
 612 INDEX. 
 
 [References are to Pages.] 
 
 LOUISIANA, 
 
 tax in, considered, 16. 
 
 history of tax in, 16. 
 
 taxing legacies to foreigners, when valid, 58, 133. 
 
 when acts of, do not conflict with federal treaty, 58. 
 
 M 
 
 MAINE, 
 
 statute of, 21, 484. 
 
 act of, held constitutional, 36. 
 
 exemptions under statute of, 87-140. 
 
 MANDAMUS, 
 
 against county treasurer to compel payment of appraiser's fees, 
 209. 
 
 MANITOBA, 
 
 history of tax in, 27. 
 
 MARKET AND FAIR MARKET VALUE, 
 
 property to be appraised at its, 216, 218, 222-224. 
 
 MARYLAND, 
 
 statute of, 16, So, 503. 
 tax in, considered, 16. 
 gift of freedom to a slave taxed, 17 (note), 
 exemptions under statute of, 85. 
 method of valuation of property in, 226. 
 appraisement of remainders in, 231. 
 assumpsit by state against legatee, 389. 
 taxation of nonresident in, 167, 170, 191. 
 retroactive exemptions in, 54. 
 
 MASSACHUSETTS, 
 
 statute of, 22, 25, Appendix, 477. 
 
 tax in, considered, 22. 
 
 its constitutionality, 35. 
 
 constitutional as a tax on a commodity, 40. 
 
 exemptions under statute of, 88. 
 
 MASSES, 
 
 legacies for, when not exempt, 92, 112, 113. 
 
 when legacies for, exempt as part of funeral expenses, 113. 
 
 payment of tax where bequest for, void, 113.
 
 INDEX. 613 
 
 [References are to Pages.] 
 
 MAXIMS, 
 
 "In lictione juris semper sequitas existat," 196. 
 "Mobilia sequuntur personam," 147, 148, 159, 160, 164, 167, 195, 
 196. 
 
 MAYOR, ALDERMEN, AND COMMONALTY OF CITY OP NEW 
 YORK, 
 legacy to, taxable, 63. 
 
 MINNESOTA, 
 
 constitutional amendment allowing tax, 24, 40, 91. 
 
 MISSIONARY SOCIETIES, 
 
 exemption of in New York and Connecticut, 83, 84, 86. 
 board of foreign missions not exempt in New York, 99. 
 Paulist Fathers not exempt, 106. 
 
 MISTAKE, 
 
 second appraisement allowed upon, 258, 259, 262. 
 effect of, upon appraisement, 258, 259. 
 mutual, of register and executor, 376. 
 effect of, upon receipt for taxes, 376, 377, 399. 
 
 MOBILIA SEQUUNTUR PERSONAM, 
 
 maxim of, based upon comity between nations, 169 (note). 
 
 maxim criticised by Comstock, C. J., and Justice Gray, 195, 196. 
 
 the English rule as to, 159, 161, 165. 
 
 first application of doctrine under legacy act, 161. 
 
 considered under the succession act as to nonresidents and aliens, 
 147, 159, 163, 164. 
 
 the rule as to, criticised, 160, 164, 195, 196. 
 
 applied to nonresidents by Jessel, M. R., 164. 
 
 power of parliament to tax nonresidents conceded, 163, 164. 
 
 when applied to property of resident decedents, 64, 148. 
 
 when rejected on grounds of public policy, 167, 172, 195, 196. 
 
 when not applicable to inheritance tax, 66 (note), 195, 196. 
 
 in New York applicable to bonds and stocks of foreign corpora- 
 tions, 16S. 
 
 when fiction of, to prevail, 66 (note), 148. 
 
 fiction rejected in many American states, 167, 168, 169 et seq., 
 195, 196. 
 
 as applied to tangible and intangible property, 167, 16S, 172.
 
 614 INDEX. 
 
 [References are to Pages.] 
 
 MOBILIA SEQUUNTUR PERSONAM— Continued, 
 
 meaning of terms "tangible" and "intangible," 173 (note), 
 restricted in Pennsylvania to intangible property of nonresidents, 
 174. 
 
 MONEY LEGACIES, 
 
 when need not be appraised, 229. 
 
 MONEY PAID, 
 
 liability of legatee to executor for, 392. 
 
 action for, at common law, against legatee, 392. 
 
 MONEYED CORPORATIONS, 
 
 included as "incorporated companies" when liable to tax, 79 
 (note), 98 (note). 
 
 MORTGAGE, 
 
 when amount of, deducted from value of land in fixing tax, 381. 
 of nonresident, when exempt, 177. 
 
 see "Tangible and Intangible Property." 
 
 MOTHERS, 
 
 exemptions of, see "Exemptions." 
 
 MOTION, 
 
 to vacate assessment, presumption as to notice, 401. 
 
 MUNICIPAL CORPORATIONS, 
 legacy to, when taxable, 63, 119. 
 legislature may delegate taxing power to, 72. 
 
 MUNRO, 
 
 J. E. C, on estate and succession duty, 11 (note). 
 
 MUSEUMS OP ART AND HISTORY, 
 when not exempt, 99. 
 
 MUTUAL BENEFIT ASSURANCE ASSOCIATION, 
 when legacy to, taxable, 113. 
 see "Insurance." 
 
 MUTUALLY, 
 
 acknowledged relation of parent under New York statute, 82, 
 
 123, 130. 
 under Illinois statute, 90. 
 
 words "mutually acknowledged" defined, 123 (note), 
 facts necessary to constitute, 123.
 
 INDEX. 615 
 
 [References are to Pages.] 
 
 MUTUALLY— Continued, 
 
 step-parent does not occupy relation, 123. 
 
 aunt and niece may, 124. 
 
 strangers may occupy relation, 124. 
 
 relation must have existed 10 years, 124, 125. 
 
 ruling under Act N. Y. 1S92 that child must have been illegitimate, 
 
 126, 127. 
 ruling of Van Brunt, P. J., criticised, 127, 128. 
 dissented from, 129. 
 
 MUTUAL MISTAKE, 
 
 effect of tax receipt given by, 376. 
 see "Mistake." 
 
 N 
 NATURAL RIGHT, 
 
 taking by will or intestate law not, 6. • 
 
 NEGLECT, 
 
 to pay tax, notice of, by county treasurer, 356, 396. 
 
 to pay tax, effect of, 356. 
 
 of remainder-man to file bond, effect of, in Pennsylvania, 320, 321. 
 
 NEPHEWS, 
 
 see "Exemptions." 
 
 NEW JERSEY, 
 statutes of, 22. 
 
 statute of 1S94, see Appendix, 459. 
 tax in, considered, 22. 
 exemptions under statutes of. SS. 
 real estate liable under act 1894, 22. 
 
 taxation of personal property of resident, where not within the 
 state, 151. 
 
 NEW YORK. 
 
 statutes of, from 18S7 to 1895, see Appendix, 425, 458. 
 
 history of tax in, 18. 
 
 revenues. 19, 21 (note). 
 
 report of Comptroller Roberts as to revenues, 21. 
 
 nature of tax under Transfer Act 1892, 38. 
 
 city of, when legacy to, taxable, 63, 119. 
 
 statutes of, need not state object of tax, 51.
 
 616 INDEX, 
 
 [References are to Pages.] 
 
 NEW YORK— Continued, 
 
 messages on tax by Gov. Hill, 20, 21 (note). 
 
 preliminary review of early statutes, 275. 
 
 taxation and appraisement of remainders and future estates, 243, 
 
 256, 275, 307. 
 provisions of transfer tax of 1892, 279. 
 
 revised statutes as to vested and contingent estates, 279 (note), 
 vested estates, 282. 
 vested estates denned, 283 (note), 
 contingent or future estates, when tax payable, 285. 
 contingent or future estates, when not appraisable or taxable, 
 
 296. 
 when such estates appraisable at death, 299. 
 appraisable and taxable when in possession or enjoyment, 303. 
 estates taxable under retroactive clause of Act 1S92, 307-316. 
 liability of nonresident decedents in, 166, 180, 190. 
 method of valuation of life estates in, 224, 231. 
 transfers of stock, etc., in, by foreign executors, 174. 
 
 see "Constitutionality"; "Exemptions"; "Nonresident Dece- 
 dents"; "Remainders, Contingent and Future Estates." 
 
 NEW YORK CITY, 
 
 when legacy to mayor, etc., of, taxable, 63, 119. 
 institutions exempt from taxation in, 78 (note), 
 list of exemptions by special statutes in, 79 (note), 23. 
 
 NEXT OF KIN, 
 
 how ascertained, 132, 133. 
 
 exemption of, 132. 
 
 when grandmother not exempt as, 132. 
 
 not exempted where lineals are taxed, 132. 
 
 NIECES, 
 
 exemption of, see "Exemptions." 
 
 NONRESIDENT, 
 
 see "Constitutionality"; "Nonresident Decedents." 
 
 NONRESIDENT DECEDENTS, 
 
 heirs and legatees of, 63, 67, 159 et seq. 
 general rules as to domicile and situs of, 63, 67. 
 conflict under statutes with reference to liability of, 64, 147, 163, 
 165.
 
 INDEX. 617 
 
 [Roforoncos arc to Pages.] 
 
 NONRESIDENT DECEDENTS— Continued, 
 
 power of legislature to tax legacies given by, 65, 133. 
 
 policy of states to apply tax upon, KIT. 
 
 where succession to property of takes place for taxation, 191. 
 when intention to tax to be clear, 65, 66, 170, 171. 
 no intention to tax under acts of congress, 158. 
 state no power to tax nonresident personally, 146. 
 when tax to be enforced against property itself, 147. 
 the English rule of mobilia sequuntur personam, as applied to, 
 
 159 et seq. 
 maxim first applied under legacy act in 1S30, 161. 
 tax applied to persons and property limited to Great Britain, 
 
 101, 102. 
 no intention to tax in England, 103. 
 the rule criticised and rejected by American cases, 159 (note), 
 
 100. 
 conflicting decisions as to, under legacy and succession acts, 
 
 103, 105. 
 English rule criticised by Jessel, M. R., 164. 
 liability to legacy duty determined by domicile, 163. 
 securities not taxable against, 165, 166. 
 mobilia sequuntur in American states as to, 160, 195, 196. 
 rule as to taxation of in North Carolina, in Alvaney v. Powell, 
 
 168, 109. 
 English cases distinguished by Pearson, J., 169. 
 rule to tax in Maryland, 170. 
 
 rule in New York as to stocks and bonds of, 171, and note. 
 French treaty with United States does not exempt aliens in 
 
 New York, 171, 172. 
 when fiction rejected as to tangible and intangible property of, 
 
 1(57. 10S, 172, 174, 195, 190. 
 tangible and intangible property of taxed in Connecticut, 
 
 Massachusetts, Ohio, and Maine, 172. 
 tangible and intangible property of, denned and classified, 173 
 
 (note), 174. 
 rule of United States supreme court as to taxing securities of, 
 
 175 (note), 
 intangible property of, not taxable in Pennsylvania, 175, 176. 
 rule as to, in Orcutt's Appeal, 176. 
 rule in Coleman's Estate, 177.
 
 618 INDEX. 
 
 [References are to Pages.] 
 
 NONRESIDENT DECEDENTS— Continued, 
 
 rule exempts bonds and stocks of, actually within state. 177. 
 178. 
 
 mortgages upon real estate not liable, 177. 
 
 proceeds of lands in Pennsylvania belonging to, when not 
 taxable, 177, 190. 
 
 interest in limited partnership of, when taxable, 178, 179. 
 
 rule in Small's Estate, 178, 190. 
 
 taxing stocks of, under new administration, 179. 
 
 funds of, when distribution takes place in Pennsylvania, tax- 
 able, 180. 
 
 rule as to, in New York, under act of 1885, 180. 
 
 bonds and stocks of, held not liable, 180. 
 
 rule under Acts 1887 and 1892, 181. 
 
 rule in Romaine's Case (Act 1887), 182. 
 
 stocks and bonds, money in bank, taxed, 182. 
 
 opinion of A'ann, J., 182, 183. 
 
 stocks and bonds of, in foreign corporations, held not liable, 
 183, 184. 
 
 act of 1887, rule in James' Case (1894) 183-185. 
 
 objections to ruling in James' case, 185, 187. 
 
 rule as to double taxation, 50, 187, 193. 
 
 right to a legacy to nonresident not taxable, 187. 
 
 rule in Phipps' Case, 187, 188. 
 
 real estate of, when taxable at situs, 190, 191, 193. 
 
 where succession takes place for taxation of, 191. 
 
 conflict as to liability of, 190-192. 
 
 taxing does not violate constitution, 193, 194. 
 
 objections to exempting tangible or intangible property of, 
 under the fiction, 194, 195. 
 
 remarks of Comstock, C. J., and Mr. Justice Gray, upon fic- 
 tion of mobilia, 196. 
 
 rule discriminates against resident decedents, 196, 197. 
 
 foreign legacies, when not taxable, 197. 
 
 where nonresident decedent's debts exceed value of estate, 
 198 et seq. 
 see "Legacy Duty Act"; "Succession Duty Act." 
 
 NONRESIDENT LEGATEES, 
 
 taking property from resident decedents, 149.
 
 INDEX. 619 
 
 [References are to Pages.] 
 
 NONRESIDENT TRUSTEES, 
 
 when property held by, not taxable, 198. 
 
 NORTH CAROLINA, 
 tax in, considered, 17. 
 history of tax laws, 17 (note), 
 exemptions under statute of, 86. 
 colleges and churches not exempt, 100. 
 appraisement and taxation of remainders in, 236. 
 property of foreign intestates in, 167-1G9. 
 remedy under statutes of, to collect tax, 389. 
 
 NORTH, LORD, 
 
 originated legacy tax:, 8. 
 
 NOTES, 
 
 see "Tangible and Intangible Property." 
 
 NOTICE AND HEARING, 
 
 right to, 52 et seq., 400, 401. 
 
 of time and place of appraisement, 391, 400, 401. 
 
 persons entitled to, to be specified in order, 400. 
 
 infants entitled to, 401. 
 
 rights of purchasers without, 405, 406. 
 
 effect of decree made without, 399. 
 
 tax void where persons not notified, 359, 375, 376. 
 
 when surrogate presumed to have given, 401. 
 
 from county treasurer to district attorney, 396, 397. 
 
 NOVA SCOTIA, 
 
 history of tax in, 27. 
 
 o 
 
 OBJECT OF TAX, 
 
 when law not void as not stating, 51. 
 
 OHIO, 
 
 statutes of, 4S9-497. 
 
 history of tax in, 22. 
 
 exemptions under statute of, 89. 
 
 tax on lineal heirs held unconstitutional, 48, 70. 
 
 OMISSION, 
 
 effect of, upon appraisement, 260.
 
 620 INDEX. 
 
 [References are to Pages.] 
 
 ONTARIO, 
 
 tax in, explained, 26. 
 
 OPTION, 
 
 when remainder-man to exercise, as to payment, 271. 
 ORDER, 
 
 confirming report of appraiser, when conclusive, 258, 
 
 ORPHAN ASYLUMS, 
 
 exemption of, 92, 101, 111. 
 
 ORPHANS, 
 
 exemption of societies supporting, 101. 
 
 ORPHANS' COURT, 
 
 proceedings in Pennsylvania to collect tax, 362, 390. 
 
 P 
 
 PARENT, 
 
 by nature, when exempt, 123. 
 
 facts necessary to constitute mutually acknowledged relation of, 
 123 et seq. 
 see "Exemptions"; "Mutually Acknowledged Relation." 
 
 PARLIAMENT, 
 
 power of, to tax nonresident decedents, 159 et seq., 163 et seq. 
 PARTIES, 
 
 rights of, to notice and hearing, 350, 400 et seq. 
 
 citation of, in proceedings to collect tax, 395, 396. 
 
 district attorney as a party upon accounting, 397. 
 see "Remedy and Practice." 
 
 PARTITION PROCEEDINGS, 
 
 sums realized in, do not prevent appraisement, 217. 
 
 claim for tax in, 389. 
 
 liability of money paid legatee in, 393. 
 
 alien devisee receiving money in, when estopped, 393. 
 
 no liability of purchaser at, for taxes, 393. 
 
 infant's share in, when taxed, 143. 
 
 PARTNERSHIP, 
 
 liability of deceased nonresident in, limited for tax upon property 
 in Pennsylvania, 179.
 
 INDEX. 621 
 
 [References are to Pages.] 
 
 PARTNERSHIP— Continued, 
 
 limited, where property of deceased member taxable, 385. 
 when interest of decedent in, not liable to penalty, 414. 
 
 PASTOR, 
 
 bequest to, for masses, 113. 
 
 PAULIST FATHERS, 
 bequest to, taxable, 106. 
 
 PAYMENT OF TAX, 
 
 how secured in England, 12. 
 
 when state entitled to immediate, 320, 321. 
 
 when avoided by bona fide transfer, 329. 
 
 power of district attorney to compel, 356 et seq. 
 
 district attorney not entitled to, on accounting, 397. 
 
 when suiTogate will not compel, 355, 360. 
 
 when possession accrues, rule as to, in Pennsylvania, 325. 
 
 rights of remainder-man as to, in Pennsylvania, 319. 
 
 by remainder-man, in anticipation, 323. 
 
 upon contingent annuities, 302. 
 
 in what county made, 354, 35S, 362. 
 
 constructive after 42 years, as to heirs, 408. 
 
 when presumed, 408. 
 
 when receipt for taxes not, 399. 
 
 delay in, when excused as to penalty, 411 et seq. 
 
 erroneous, when tax to be refunded, 403 et seq. 
 
 PENALTY, 
 
 legacy tax is not a, 7, 406. 
 
 and interest for unpaid taxes, 411 et seq., 415 (note). 
 
 resistance to payment of tax, cause for, 412, 413. 
 
 when statutes imposing, strictly construed, 411. 
 
 suits to enforce, cannot be brought in foreign states, 411. 
 
 foreigners, when not relieved from, 415. 
 
 when nonresident's estate not liable for, 411 (note 139). 
 
 when it runs against remainder-man, 412. 
 
 when executor or administrator to pay, 374. 
 
 imposed upon executor for failure to sell seat in stock exchange, 
 
 417. 
 not imposed where property involved in partnership, 414, 415. 
 burden of proof to relieve from, 414.
 
 622 INDEX. 
 
 [References are to Pages.] 
 
 PENALTY— Continued, 
 
 not exacted where failure to pay tax caused by legal doubt, 412. 
 relieved by unavoidable cause of delay in settling estate, 413 
 
 et seq. 
 relief from, under New York act of 1892, 416. 
 where relieved from, interest runs from death, 415. 
 relieved by necessary litigation, 416. 
 no limit of time as to, 405, 406. 
 when action to recover back where illegally exacted not barred, 
 
 410 (note), 
 when action to recover not barred by statute, 413 (note), 
 under Pennsylvania statutes, 412. 
 see "Remedy and Practice." 
 
 PENNSYLVANIA, 
 
 statute of 1S87 and amendments to 1895, 467, 476, Appendix- 
 history of collateral inheritance tax in, 15. 
 successful means of revenue, 16, 21. 
 table of annual income from tax, 21. 
 exemptions under statutes of, 84. 
 small estates, 142. 
 state, expert appraiser in, 241, 475. 
 acts of, not ex post facto, 56. 
 valid where retroactive, 54 et seq. 
 act of 1S87, objections as to title, 44 (note 48). 
 
 when void as direct tax, 43, 44. 
 when state no power to tax foreign real estate, 43, 232 (note), 
 procedure by bill, under acts of, to collect tax, 390. 
 jurisdiction of orphans' court, 390. 
 distinction between tangible and intangible property, 148, 173 
 
 (note), 
 intangible property of nonresident not taxed in, 173 (note), 176, 
 
 177. 
 taxation of nonresident's property in, 179, 180. 
 transfers of stock in, by foreign executors, 176. 
 method of valuation of life estates, annuities, etc., 226. 
 appraisement of remainders in, 232. 
 taxation of remainders and future estates in, 316. 
 liability of remainder-man under Act 1887, 318. 320, 321. 
 effect of act of 1S87 upon prior laws, 317 (note).
 
 INDEX. 623 
 
 [References are to Pages.] 
 
 PENXSYLVANIA-Continued, 
 
 provision of constitution of, as to exemptions, 84 (note), 
 colleges and public charities in, not exempt. 100, 111. 
 charitable institutions making profit, 100. 
 state certificates not taxable, 61. 
 
 see "Exemptions"; "Nonresident Decedents"; "Remedy and 
 Practice." 
 
 PERSONAL LIABILITY, 
 
 see "Administrator"; "Executor"; "Legatee"; "Remedy and 
 Practice"; "Trustee." 
 
 PERSONAL PROPERTY, 
 
 devolutions of, first taxed, 9, 74. 
 
 not taxable under acts of congress where proceeds of real estate. 
 
 144. 
 assigned to devisee in partition proceedings, liable, 393. 
 lien of tax upon, 405. 
 
 see "Nonresident Decedents"; "Property"; "Resident Dece- 
 dents." 
 
 PERSONAL PROPERTY TAX, 
 
 requisites to jurisdiction, 145, 146, 148. 
 
 has no application to inheritance tax, 185, 192 (note). 
 
 criticised, 4. 
 
 PERSONALTY, 
 
 liability of partnership property as, 162. 
 when not liable for mortgage debt, 381. 
 real estate, when taxable as personalty, 152 et seq. 
 appeal from appraisement of, by administrator, 403. 
 see "Equitable Conversion." 
 
 PETITION, 
 
 of district attorney, see "District Attorney"; "Forms." 
 
 PITT, WILLIAM, 
 
 attempt of, to impose succession tax, 9. 
 
 POLICY OF INSURANCE, 
 
 when appraisable and taxable, 114, 208, and note 17. 
 see "Insurance." 
 
 POLL TAX, 
 
 legacy tax not, 46.
 
 624 INDEX. 
 
 [References are to Pages.] 
 
 POOR, 
 
 societies aiding, when almshouses, 101 et seq. 
 
 POORHOUSES, 
 defined, 102. 
 exemption of, 97. 
 see "Almshouse." 
 
 PORTUGAL, 
 
 succession taxes in, 2. 
 
 POSSESSION, 
 
 of remainder-man under Pennsylvania statute, when taxable, 320, 
 322, 325. 
 
 POWER OF DISPOSITION, 
 
 general provisions of Rev. St. N. Y. as to, 286 (note 98). 
 
 what constitutes, in life tenant, 286 (note 99). 
 
 when remainder not taxable where life tenant has, 242, 243, 325. 
 
 where widow has, connected with a trust for charitable uses, 
 
 243, 325, 326. 
 as to those which are discretionary, 287 (note). 
 
 POWERS OF APPOINTMENT, 
 
 property passing under, to trustee, taxable four years after death. 
 
 249, 250, 305, 339, 340. 
 when property passing under, to lineal descendants, not liable, 
 
 133, 339. 
 property passing under, to collaterals, when taxable, 133. 
 appraisement of property passing under, where exercised after 
 
 death, 249, 250. 
 effect of improper exercise of, 339. 
 
 liability of executor holding trust fund for tax under, 3S0. 
 by will in life tenant, 133. 
 
 as to discretion of trustees under, in England, 275, 339 (note), 342. 
 taking effect after passage of law, 315, 342. 
 of property under an imperative special power, 342. 
 
 PRACTICE, 
 
 see "Remedy and Practice." 
 
 PRESUMPTION, 
 
 of survivorship, where death by drowning, 133 (note). 
 
 as to notice of assessment, 401. 
 
 as to payment of tax, in favor of purchasers, 406.
 
 INDEX. 625 
 
 [References are to Pages.] 
 
 PRIESTS, 
 
 legacies to, for masses, 92. 
 
 PRINCIPAL, 
 
 when used by life tenant to make up income, remainder not tax- 
 able, 287. 
 
 PRIVATE PROPERTY, 
 
 tax not considered as a taking of, 51. 
 
 PRIVILEGE, 
 
 legacy tax is upon, 30. 
 
 power of legislature to tax, 29. 
 
 PROBATE PROCEEDINGS, 
 
 when tax on, void, 47 (note 64). 
 
 PROCEDURE, 
 
 see "Remedy and Practice." 
 
 PROCEEDS, 
 
 of foreign real estate, when taxable, 152 et seq. 
 
 PROFITS, 
 
 corporations making, liable to tax, 79 (note 23), 84, 100. 
 
 PROMISSORY NOTE, 
 
 transferred inter vivos, when not taxable, 335, 336. 
 taxable when bequeathed to debtor, 346. 
 
 PROPER PARTY, 
 
 when district attorney deemed, upon accounting, 397. 
 
 PROPERTY, 
 
 or person, confers jurisdiction to tax, 145, 146. 
 stocks and shares in foreign governments taxable, 166. 
 foreign bonds and securities liable to probate duty, 166. 
 tangible, of nonresident decedents, when liable, 65, 66. 
 "tangible" and "intangible" defined, 173, 174 (notes). 
 foreign real estate, when taxable, 67, 152 et seq. 
 see "Nonresident Decedents." 
 
 PROPERTY TAX, 
 
 inheritance and legacy tax not, 41, 43. 
 exemptions from, do not relieve from legacy tax, 94. 
 legacy tax on government bonds and state securities not a, 59 
 et seq. 
 law inher.— 40
 
 626 INDEA. 
 
 [References are to Pages.] 
 
 PROPERTY TAX— Continued, 
 
 on government bonds, when void, 59, 60 (note). 
 
 tax on legacy to federal government not, 43. 
 
 not a tax on real or personal property in Maine, 43. 
 
 PUBLIC CHARITY, 
 
 when not exempt from tax in Pennsylvania, 111 (note), 
 colleges, when not exempt from tax, 100, 111. 
 
 PUBLIC LIBRARIES, 
 
 exemption of, 92, 95 (note), 97. 
 
 public library in city of Brooklyn exempt, 99. 
 
 when geographical societies are exempt as, 112. 
 
 PUBLIC OFFICERS, 
 
 compromises of tax with, by executors and legatees, 383, 385. 
 
 PUBLIC POLICY, 
 
 as to taxing nonresidents, 148. 
 
 PUBLIC PROPERTY, 
 
 exemption of, in Pennsylvania, 84 (note). 
 
 PUBLIC PURPOSES, 
 
 exemptions of corporations for, in Connecticut, 86. 
 
 PUBLIC WORSHIP, 
 defined. 111, 112. 
 exemption of houses of, 97, 101, 105. 
 
 PURCHASER, 
 
 rights of, in Pennsylvania, under judicial sales, 408, 409. 
 
 PURCHASERS OF REAL ESTATE, 
 
 statute of limitation in favor of, 236, 374, 377, 406. 
 presumption as to, where state neglects to enforce lien, 260, 405 
 
 et seq. 
 when receipt for tax protects, 263, 374, 377, 394, 406. 
 remedy of, upon covenant, against vendor for taxes paid, 394. 
 presumption of payment of tax in favor of, 406 et seq. 
 rights of, under English statutes, 377 (note 150), 405. 
 when bona fide purchasers protected against future claims, 406. 
 when not personally liable for tax, 393, 410. 
 of land sold in separate lots, 410, 411. 
 
 see "Real Estate"; "Remedy and Practice."
 
 INDEX. 627 
 
 [References are to Pages.] 
 
 QUEBEC, 
 
 history of tax in, 26. 
 
 Q 
 
 R 
 BATE OP TAX, 
 
 theory of graduation as to, 10. 
 
 remarks of Mills upon graduated tax, 10 (note 33). 
 
 theory of Mr. Justice Brewer that tax should be graduated, 2 
 
 (note 2). 
 under Roman law, 7. 
 
 English law, 10, 12 (note). 
 
 acts of congress, 14. 
 
 what statutes imposed, 419. 
 
 REAL ESTATE, 
 
 when included in word "legacy," 266. 
 
 when conveyance of, not a gift, bequest, or endowment, 100. 
 
 appraisement of, in Pennsylvania and Maryland, 205. 
 
 appraisement of, in New York, 205, 217, 218. 
 
 appraisement of, under Act N. Y. 1891, 209, 210. 
 
 beyond state, when not taxable, 67, 143, 156, 157, 371. 
 
 when taxable at situs, 143, 167, 192. 
 
 taxed irrespective of domicile of owner, 165, 168 (note). 
 
 foreign, when not taxable at decedent's domicile. 371, 372. 
 
 foreign, when proceeds of, not taxable, 371, 372. 
 
 as to taxation of, in Pennsylvania, as against nonresidents, 157 
 
 (note), 
 foreign, owned by partners, considered personalty in England, 
 
 153, 162, 163. 
 foreign and domestic, when taxed as personalty under doctrine 
 
 of equitable conversion, 67, 152, 158, 371. 
 when not taxable as personalty in New York, 143, 153, 154, 155, 
 
 371. 
 when mortgage on, will be deducted in fixing value, 381. 
 liable under Act N. J. 1894, 22. 
 legacies payable from, when not taxable under acts of congress. 
 
 144. 
 when executor or administrator not liable for tax on, 372, 381.
 
 628 * INDEX. 
 
 [References are to Pages.] 
 
 REAL ESTATE— Continued, 
 
 executor no right to pay tax on, out of personalty, 372. 
 liability of executor upon land devised to himself, 372. 
 liability of heir or legatee for tax upon. 372, 381. 
 infant's share in partition, when taxable as personalty, 143. 
 lien on, under English statutes, 405. 
 
 under New York statutes. 405, 406. 
 
 of five years upon, in Pennsylvania, 406. 
 
 on, under Illinois statute, 406. 
 
 of tax, as to bona fide purchasers of, 405^07 et seq. 
 
 of tax, when presumed to be paid, 408. 
 appeal by heir, when tax upon, 403. 
 
 see "Foreign Real Estate" ; "Remedy and Practice." 
 
 REAL PROPERTY, 
 
 succession to, when first taxed in England, 8. 
 
 RECEIPT, 
 
 when necessary for executor's discharge from liability, 364, 375. 
 "in full" for taxes, given by register, effect of, upon executor, 376. 
 when not a bar to recovery of tax and interest, 376, 377, 399. 
 no protection where procured by fraud or mistake, 377, 399. 
 effect of, upon proceedings of district attorney, where property in 
 
 different counties, 399 (note 69). 
 county treasurers, effect of, upon bona fide purchaser, 263, 362 
 
 (note), 394, 406. 
 must designate land on which tax paid, 394. 
 see "Remedy and Practice." 
 
 REFERENCE, 
 
 power of surrogate to order, upon disputed questions, 356, 401. 
 
 REFORMATORIES, 
 
 exemption of, in New York, 78. 
 
 REFUND OF TAX, 
 
 when debts accrue after payment, 202. 
 see "Remedy and Practice." 
 
 REFUSAL, 
 
 to pay tax, effect of, upon district attorney, 359, 396. 
 effect of, upon costs of district attorney, 360 (note 59). 
 notice of, by county treasurer, 359, 396.
 
 INDEX. 629 
 
 [References are to Pages.J 
 
 REFUSAL— Continued, 
 
 or neglect, when demand necessary to show under acts of con- 
 gress, 359 (note 52). 
 
 REGISTER OP WILLS, 
 
 duties of, iu Pennsylvania, 233, 3G2 (note). 
 
 may by bill or petition compel payment of tax in orphans' court, 
 362, 390. 
 
 method of ascertaining value of estates in remainder, 233, 242 
 (note). 
 
 liability of sureties of, 362 (note). 
 
 effect of receipt in full for taxes, 362 (note). 
 
 may appoint expert appraisers, to be approved by auditor gen- 
 eral, 210; Appendix, 475. 
 
 RELEASE, 
 
 taxes, power of state to, 54, 55, 309. 
 
 by will, of legacy or annuity from tax, makes executor liable, 
 
 378, 379. 
 to defeat tax, when within statute, 333, 334. 
 
 RELIGIOUS CORPORATIONS, 
 
 not exempt in England, 106. 
 
 exemption of, in New York, 83, 92, 93 (note), 98-100. 
 
 exemption of, under New York acts of 1890 and 1892, 83, 95. 
 
 when not exempted as "incorporated companies, ' 93, 98, 99. 
 
 when not exempted under the act of 1892, 99. 
 
 boards of foreign missions and foreign corporations not exempt, 
 
 99, 106. 
 legacy to church liable, 105, 106. 
 when church exempt, 112. 
 legacy to "Paulist Fathers" liable, 106. 
 Young Men's Christian Association liable, 111. 
 school, to be exempt, must belong to a religious society, 112. 
 public charities not exempt in Pennsylvania, 100. 
 exemption of, in Massachusetts, 88. 
 exemption of, in Connecticut, 86, 96. 
 
 New Jersey, 88. 
 liable in North Carolina and Virginia, 100. 
 What included under, 92. 
 
 see "Exemptions"; "Masses."
 
 630 INDEX. 
 
 [References are to Pages.] 
 
 RELIGIOUS WORSHIP, 
 
 places of, when exempt, 92, 98, 100. 
 
 REMAINDER-MAN, 
 
 when to have immediate appraisement in Pennsylvania, 237, 239, 
 
 240. 
 relative rights of, and life tenant, 270 et seq. 
 not affected by tax due by life tenant, 265, 270. 
 rule as to payment of tax where life tenant exempt, 270, 271. 
 tax of, payable on principal when life estate ended, 270, 271. 
 liability of, where life tenant has power of disposition, 228, 242, 
 
 243, 268, 269, 339. 
 when to have possession in order to be taxable, 272. 
 may anticipate payment of tax, 238, 271, 272. 
 advantage to, in paying tax in anticipation, in Pennsylvania, 242 
 
 (note), 271, 272. 
 tax upon, when estate vests in possession, 272. 
 rights of, under Pennsylvania acts of 1850 and 1855, 236, 237, 240. 
 liability of, under Pennsylvania act of 1887, 238, 240. 
 conditional bond to be given by, 301 (note), 347. 
 how tax on paid by, in Massachusetts, 272. 
 under New York statutes, 279-281. 
 
 see "Life Tenants"; "Remainders, Contingent and Future Es- 
 tates." 
 
 REMAINDERS, CONTINGENT AND FUTURE ESTATES, 
 what words sufficient to include remainder, 319. 
 life estates, annuities, legacies, and joint tenancies, 264, 269. 
 relative rights of life tenant and remainder-man, 270, 273. 
 England, 
 
 remainders, contingent and future estates in, 273, 274. 
 
 interests taxable under acts of Victoria, 273. 
 
 how duties paid where estate is accelerated, 273. 
 
 value of contingent interest, how made, 274. 
 
 executor allowed to commute duty on, 274 (note), 273 (note 52). 
 acts of congress, 
 
 remainders not taxable until they vested in possession or en- 
 joyment, 274. 
 
 word "succession" defined, 274. 
 
 succession, when real estate included within, 274.
 
 INDEX. G31 
 
 [References are to Pages.] 
 
 REMAINDERS, CONTINGENT AND FUTURE ESTATES— Cont'd, 
 
 life tenant and remainder, tax upon, where succession accel- 
 erated, 275. 
 under New York statutes of L885, 1887, 1892, 
 
 preliminary review of early statutes with reference to, 275, 278. 
 
 "Contingent Remainders and Vested Estates," by Austin Ab- 
 bott, Esq., 275 (note 62). 
 
 vested and contingent estates defined under the New York 
 Revised Statutes, 279, 280 (note). 
 
 vested estates, In re Seaman, Addenda, xix. 
 
 estates included under Act 1885, 27(5. 
 
 what estates embraced within, 270. 
 
 rule in Re Stewart explained in Re Curtis, about taxing con- 
 tingent interests, 277 (and note 07). 
 
 taxing and assessing such interests at death condemned, 277, 
 27S. 
 
 not to be taxed, but may be assessed at death, 277 (note), 
 provisions as to, of transfer tax of 1892, 279, 2S0. 
 
 value of contingent estates under, how ascertained, 280. 
 
 state superintendent of insurance, certificate of, when con- 
 clusive as to value, 280, 281. 
 
 tax upon, generally due at time of transfer, 281. 
 
 technical vesting not sufficient to warrant tax upon, 282, 283. 
 
 executors, etc., may elect by giving conditional bond, 281, 285, 
 301. 
 
 what the words "estate," "transfer," "property" include, 281, 
 282. 
 
 decisions under these acts, 282, 316. 
 
 vested remainders or estates, tax upon, due at death, 282, 
 285. 
 
 "vested estates" defined, 2S3 (note). 
 
 general rule to favor vesting, 283. 
 
 rule as to tenants by the entirety, husband and wife, 284, 303. 
 
 when a life estate and vested remainder both taxable, 2S5. 
 
 tax upon contingent estates not payable until remainders vest 
 in possession or enjoyment, 281, 2S5, 296, 303, 307. 
 
 when not taxable or appraisable at death, 296, 299. 
 
 when contingent interest appraisable at death, 299. 
 
 technical vesting not sufficient to warrant tax upon, 282, 283.
 
 632 INDEX. 
 
 [References are to Pages.] 
 
 REMAINDERS, CONTINGENT AND FUTURE ESTATES— Cont'd, 
 power of disposition, provision of Rev. St. N. Y. concerning, 
 
 286 (note). 
 no tax on remainders until power exercised by life tenant, 
 
 286, 287. 
 nor where trustee has discretionary power to use money for 
 
 support of life tenant, 287. 
 no tax due where remainder-man takes, providing he survives 
 
 life tenant, 287, 296. 
 remainders not taxable until termination of trusts, Act 1SS5, 
 
 Curtis' Case, 288, 2S9. 
 illustrates the hardship in taxing contingent interests, 290. 
 same rule followed regarding contingent annuities and re- 
 mainders under Act 1887 in Re Roosevelt's Estate, 290-292, 
 301. 
 rule followed in Re Hoffman, Act 1892, 292, 293. 
 no tax where life estate given to widow, or until she mar- 
 ries again, 295. 
 no tax where partnership to be continued until heirs come into 
 
 possession, 295, 296. 
 estates taxable under retroactive clause, Act N. Y. 1892, 307, 
 314. 
 see In re Seaman, 32, 38, 80. 228, 248, 254, 275, 280, 282. 
 285, 288, 304, 307, 308, 309, 352, Addenda, 
 under the English succession duty act, 314. 
 acts of congress, 315, 316. 
 vested and contingent, rules as to in Pennsylvania, 316, 327. 
 vested and contingent, under Pennsylvania acts prior to 1850, 31S, 
 
 319. 
 effect of act of 1887 upon prior laws, 317 (note). 
 tax upon, to be assessed at time right of possession accrues, 320, 
 
 321, 322. 
 when commonwealth entitled to immediate payment, 320, 321. 
 anticipation of payment by remainder-man, 323. 
 tax imposed upon net balance after all deductions, 324, 325. 
 expense of counsel in litigation not allowed, 324. 
 power of disposition by life tenant, when no tax can be imposed, 
 
 325. 
 life tenant directed to pay legacies, when taxable, 326.
 
 INDEX. 633 
 
 [References are to Pages.] 
 
 REMAINDERS, CONTINGENT AND FUTURE ESTATES— Cont'd, 
 legacy to wife for charitable purposes, taxing amount necessary 
 
 for her support, o"J<>. 
 remainders under the Massachusetts act, 326. 
 see "Appraisement." 
 
 REMEDY AND PRACTICE, 
 
 nature of remedy, actions and proceedings thereunder, 386 et 
 
 seq. 
 action of assumpsit in Maryland, by state against legatee, 389. 
 
 in rem by state against executor, 388-390. 
 
 in rem under acts of congress, 388, 389. 
 
 of debt against executor in England, 390. 
 
 of debt under Louisiana statute against heirs, 389, 392. 
 
 at law by county treasurer in New York, 391. 
 
 at law by executor against legatee, 392. 
 
 by purchaser of land against vendor for taxes, upon covenant, 
 409, 410. 
 accounting of executors, state not bound to wait for, 387. 
 
 district attorney proper party upon, 397. 
 
 district attorney cannot enforce payment in, 397. 
 administrator, right of appeal by, 403. 
 
 may have appraiser appointed, 397. 
 alien devisee, cannot set up that devise to, is null and void, 393. 
 amendatory statutes, effect of, upon adopted children, 422, 423. 
 appeal, supreme court of United States, power of, to review by, 
 402 (note). 
 
 as to personalty and real estate, 403. 
 
 by parties aggrieved, 401, 402. 
 
 by administrator, 403. 
 
 by heir, from appraiser's report, 403. 
 
 from assessment of surrogate, security on, 402. 
 
 findings of fact, etc., under New York statute, 402 (note). 
 
 from appraiser's report, 402, 403. 
 appraiser, order appointing should specify those to be notified, 
 400. 
 
 county treasurer may apply for. 391. 
 
 proceedings for, when dismissed, 397. 
 
 when expert appraiser appointed in Pennsylvania, 210, 475.
 
 634 INDEX. 
 
 [References are to Pages.] 
 
 REMEDY AND PRACTICE— Continued, 
 
 appraisement, second, where property is withheld from ap- 
 praiser, 398. 
 assumpsit by state to recover tax, 389. 
 assessment order, when to describe land, 394. 
 attachment, when executor liable to, for nonpayment, 391. 
 bill in equity, by attorney general, to collect tax, 389. 
 
 in orphans' court. Pennsylvania, to collect tax, 390. 
 
 to recover tax, by register, in Pennsylvania, 390. 
 certiorari, remedy by, to correct assessment, 387. 
 claim of state for taxes, when not suspended, 387. 
 citation to parties in proceedings to collect tax, 400. 
 common-law remedy, when not maintainable against executor, 
 
 388. 
 compulsion of law, executor against legatee, 392. 
 contempt proceedings against executor, 391. 
 conveyance by legatee to nontaxable person, no bar to tax, 393. 
 county court in Illinois, jurisdiction to collect tax, 397. 
 county treasurer may apply for appraiser, 391. 
 
 receipt of, when purchaser of land protected by, 394. 
 
 receipt of, where assessment on land, 394. 
 
 in Illinois, to notify state's attorney, 397. 
 
 when decrees or orders ex parte not binding upon, 399. 
 decree of surrogate, when conclusive, 398 (note). 
 
 or order ex parte, when not binding, 399. 
 
 when remedy from, by appeal, 401. 
 defenses of legatee upon proceedings to collect tax, 392. 
 demand for tax, when necessary under acts of congress, 396 
 (note). 
 
 for tax, not necessary in New York, 396, 397. 
 district attorney, proceedings by, to compel payment in New 
 York, 391, 395-397. 
 
 when proper party on accounting, 397. 
 
 costs of, 402, and notes. 
 
 effect of receipt upon proceedings of, 399 (note), 
 executor, action by, against legatee, under English statutes, 
 391, 392. 
 
 personal liability of, under English statutes, 389, 390. 
 
 personal liability of, under acts of congress, 373, 374, 388, 389. 
 
 personal liability of, how enforced, 395-397.
 
 INDEX. 635 
 
 [References are to Pages.] 
 
 REMEDY AND PRACTICE— Continued, 
 
 personal liability of, in New York, 365, 374, 390, 391. 
 
 when liable by attachment or contempt, 391. 
 
 personal liability of, in Pennsylvania, 390. 
 
 proceedings by, for appraiser, 397. 
 
 personal liability of, for costs, 390, 391. 
 forfeiture, when no limitation against tax as, 406 (note), 
 injunction, testing constitutionality of statute by, 389 (note), 
 interest and penalties for nonpayment of tax, 411 et seq. 
 jurisdiction of surrogate in New York, 394. 
 justification and defense to legatee, what is, 392. 
 land, in what proportion to be taxed, 410. 
 legatee, liability of, to executor, under American statutes, 392. 
 
 not liable unless he accepts legacy, 392. 
 
 release by nontaxable person, no bar, 393. 
 liens, defined, 405. 
 
 taxes not, unless assessed, 405. 
 
 when statutory, 405. 
 
 how enforced under acts of congress, 3S9, 393, 410. 
 
 under acts of congress, when presumed to be paid, 410. 
 
 under English statutes, 405. 
 
 as between purchaser and vendor, 405 (note). 
 
 under Pennsylvania statute, 406. 
 
 how discharged by judicial sales, 409. 
 
 when purchaser of land takes subject to, 410. 
 
 of tax in New York, 405, 406. 
 
 under laws of Illinois, 406. 
 
 when perpetual against legatees, 407. 
 
 to what it attaches, 393. 
 
 when divested by partition sale, 409. 
 
 when purchasers of real estate protected against, 393, 405, 
 406. 
 
 effect of neglect to enforce in 20 ytars, as against purchas- 
 ers, 393, 408, 409. 
 
 after 42 years presumed to be paid, 408. 
 litigation, effect of, upon penalty for delay, 413. 
 mandamus, writ of, to restrain collection. 389 (note), 
 mistake or fraud, effect upon receipt for taxes, 399. 
 
 of law, tax cannot be recovered for, 403.
 
 636 INDEX. 
 
 [References are to Pages.] 
 
 REMEDY AND PRACTICE— Continued, 
 
 notice and hearing before appraiser, 391, 400, 401. 
 
 and hearing, infants entitled to, 401. 
 
 when giving of, by surrogate, presumed, 401. 
 orphans' court, bill in, by register, to collect tax, 390. 
 partition, when sale divests lien, 409. 
 
 proceedings, money paid legatee in, 389, 393. 
 
 proceedings, liability of alien devisee in, 393. 
 
 sales, -no personal liability of purchaser at, 393. 
 penalty or forfeiture, no limitation against tax as, 406. 
 
 as to action to recover, where tax illegally exacted, 410 (note), 
 413 (note). 
 
 action to recover back, not barred by statute of limitations, 
 413 (note). 
 
 when nonresident not liable for, 411 (note). 
 
 when interest added by way of, 411. 
 
 statutes imposing, strictly construed, 411. 
 
 when actions for, cannot be enforced in foreign states, 411. 
 
 under Pennsylvania statutes from 1854 to 1887, 412. 
 
 when failure to pay, caused by honest doubt, 412. 
 
 not chargeable where unavoidable delay, 412, 414. 
 
 when imposed for resisting state's claim, 412. 
 
 litigation when it tolls, 413. 
 
 controversy between claimants does not toll, 413. 
 
 litigation between distributees does not toll, 413. 
 
 for delay, under New York statutes, 413 et seq. 
 
 unavoidable cause of delay, New York statutes, etc., not Im- 
 posed for, under Act 1887, 413, 414. 
 
 where penalty removed interest charged from death, 415. 
 
 claims, necessary litigation, or other unavoidable cause of de- 
 lay, not imposed for (Laws 1892), 414, 415. 
 
 burden of proof upon party claiming exemption from, 414. 
 
 stay of proceedings, effect of on interest and, 415. 
 
 ignorance of law by foreigners no excuse for excepting from, 
 411 (note), 415. 
 
 when prevented, but interest allowed, 415. 
 
 interest, how charged, when penalty removed, 415. 
 
 not charged where litigation prevents "the determination and 
 payment of tax, Act New York 1892," 416.
 
 INDEX. 637 
 
 [References are to Pages.] 
 
 REMEDY AND PRACTICE— Continued, 
 
 when not imposed where decedent died before Act 1892, 416. 
 petition for remission of, when insufficient, 416. 
 petitions to remit, what to allege, 416. 
 
 not imposed where litigation necessary to determine the valid- 
 ity of a trust, 416. 
 when failure to sell seat in Stock Exchange does not relieve 
 
 from, 417. 
 none imposed in cases of powers of appointments, 417. 
 petition by district attorney to compel payment, 395, 396. 
 prohibition, writ of, to restrain collection, 389 (note), 
 protest, when taxes paid under, may be recovered, 404. 
 purchaser, right of, against vendor, for taxes paid on land, 393, 
 394, 405, 406. 
 liability of, under acts of congress, 393. 
 when protected by receipt of treasurer, 394, 406. 
 when taking land subject to lien, 410. 
 receipt for taxes, no bar where omitted to be paid by mistake or 
 fraud, 399. 
 for taxes, effect upon proceedings of district attorney, 399, 
 
 note 60. 
 for taxes, by county treasurer, 394, 399 (note), 
 in full for taxes, effect of, 417 (note), 
 for taxes, effect of, upon state, as estoppel, 399. 
 reference, power of surrogate to order, 356, 401. 
 refund of tax in New York, how made, 403, 404. 
 register of wills, must be furnished with all facts, 390. 
 release or conveyance, effect of, by legatee, to nontaxable per- 
 son, 393. 
 remedy, when personal liability of executor, or proceeding in 
 
 rem, 389. 
 renouncing legacy by legatee, when a defense, 392. 
 repeal, effect of, upon taxes due, 420, 423. 
 
 effect of saving clause, 424. 
 restitution of tax erroneously paid, 403, 404. 
 
 question of, does not arise on appeal, 404. 
 retroactive, amendatory, and repealing statutes, 417 et seq. 
 special guardians, infants when to have, 401. 
 sheriff, no right to pay tax out of proceeds of sale, 393.
 
 638 INDEX. 
 
 [References are to Pages.] 
 
 REMEDY AND PRACTICE— Continued, 
 
 state, what it must show to collect tax, 398, 399. 
 
 comptroller in New York may refund illegal, etc., payments, 
 403, 404. 
 statute, when unconstitutional, remedy under, to recover taxes, 
 404. 
 taking effect immediately, effect of, upon tax, 420. 
 estates vesting before passage of, 417 (see In re Seaman, 32, 
 38, 80, 228, 248, 254, 275, 280, 282, 285, 288, 304, 307, 308, 
 309, 352, Addenda), 
 of limitations, when state not bound by, 406-408. 
 of limitations, as to legatees and executors, 406. 
 of limitations, when no bar to recovery of penalty, 406 (note), 
 of limitations, debt barred by, not taxable, 407. 
 statutory remedy to collect tax, when exclusive, 386. 
 stay of proceedings, effect on interest and penalty, 415. 
 summons in Illinois to collect tax, 390. 
 
 supreme court, United States, power of, to review state court, 402 
 (note). 
 of New York, no equity jurisdiction over tax, 395. 
 of New York, may order reappraisement, 395. 
 surrogate's court, jurisdiction of, 394. 
 surrogate, when notice by, presumed, 401. 
 taxes, erroneously paid, proceedings to refund, 403. 
 
 paid under protest, how recovered, 404. 
 testimony, power of surrogate to take, 401. 
 trustee, proceedings by, to assess, 397. 
 unavoidable cause of delay, penalty excused by, 413, 414. 
 writ of prohibition, when to restrain enforcement of tax, 404. 
 
 RENOUNCED, 
 
 commissions of executor, when not taxable, 366. 
 legacy renounced by legatee not taxable, 392. 
 
 REPEAL. 
 
 of statute, effect of, upon taxes due, 423 (note 201), 424. 
 
 effect of saving clause, 424. 
 
 of acts of congress, 14 (and note 45), 424 (note 202). 
 
 REPORT OF APPRAISERS, 
 
 see "Appraisers."
 
 INDEX. 639 
 
 [References are to Pages.] 
 
 RESIDENCE AND RESIDENTS, 
 
 see "Domicile"; "Nonresident Decedents"; "Resident Decedents." 
 
 RESIDENT DECEDENTS, 
 
 general rules as to domicile and situs, 145. 
 
 power of state to tax legacies given by, 140, 151. 
 
 legatee's domicile as to personal property and its situs, 64. 
 
 conflict under statutes as to, 147. 
 
 their heirs and legatees, taxation of, 148. 
 
 taxation of both resident and nonresident legatees, 149. 
 
 taxation of personalty, though situate abroad, 146, 14S-151. 
 
 stocks of foreign corporations liable, 149, 150. 
 
 notes secured by mortgages in other states, 150. 
 
 legacy paid to resident executor after death, not taxable, 150. 
 
 when such legacy taxable in Pennsylvania, 151. 
 
 partnership interests, lands, stocks, and bonds taxable, 151. 
 
 personalty passing under trust deed to foreign corporation liable, 
 151. 
 
 foreign and domestic real estate, under doctrine of equitable con- 
 version, 152. 
 
 direct tax on foreign real estate not imposable, 152, 156. 
 
 doctrine as to, in England, 153. 
 New York, 153, 154. 
 Pennsylvania, 155-158. 
 
 declaration of, that he was a resident, binding, 158. 
 
 RESIDENT LEGATEE, 
 
 foreign real estate devised to, when not taxable, 152. 
 
 RESIDUARY ESTATE, 
 
 when insufficient to pay tax upon legacies, 267. 
 
 RESIDUARY LEGATEES, 
 
 when taxes chargeable against, 380 (note). 
 
 RESTITUTION, 
 
 under English statutes, 404 (note). 
 
 of tax in New York, under acts of 1S87 and 1892, 403. 
 
 when surrogate may order refund of tax, 404. 
 
 when question of, not considered on appeal, 404. 
 
 RETROACTIVE STATUTES, 
 
 clauses as to, in English acts, 12 (note), 307, 314 (note), 417, 418. 
 cases as to, decided under 10 & 17 Vict. c. 51, 314, 315.
 
 640 INDEX. 
 
 [References are to Pages.] 
 
 RETROACTIVE STATUTES— Continued, 
 
 under acts of congress, 307, 314, 315. 
 
 under Act N. Y. 1S92, and prior acts, 307, 314, 418. 
 
 act of 1S92 not retroactive as to wills in New York, In re Sea- 
 man, 32, 38, 80, 22S, 248, 254, 275, 280, 282, 285, 288, 304, 307, 
 308, 309, 352, Addenda. 
 
 as to gifts and grants causa mortis, In re Seaman, 32, 38, 80, 
 228, 248, 254, 275, 280, 282, 285, 2S8, 304, 307, 308, 309, 352, Ad- 
 denda. 
 
 when constitutional as being, 54, 55, 418. 
 
 taxing estates undistributed, 55, 56. 
 
 strictly construed, and not favored, 307, 418. 
 
 exemption of charitable, etc., corporations by, valid, 55 (note), 308, 
 309. 
 
 exemption by, of adopted children, etc., 55 (note). 
 
 effect of treaty upon prior tax laws, 58. 
 see "Remedy and Practice"; "Statutes." 
 
 REVENUES, 
 
 from inheritance taxes in England and the United States, 12, 21. 
 
 REVERSIONS AND EXPECTANCIES, 
 appraisement of, in New York, 243. 
 
 REVISED STATUTES OP NEW YORK, 
 
 provisions of, as to vested and contingent estates, 279, 280 (notes), 
 provisions of, as to powers of disposition, 2SG (note). 
 
 REWARD, 
 
 when institutions charging fees or reward not almshouses, 104. 
 
 ROBERTS, JAMES A., 
 
 state comptroller New York, report of, for 1895, 21 (note). 
 
 ROMAN LAW, 
 
 succession taxes under, 7. 
 exemptions under, 7. 
 
 ROMILLY, M. R., 
 
 criticism of the legacy and succession duty act by, regarding non- 
 residents, 165. 
 
 RUSSIA, 
 
 succession taxes in, 2.
 
 INDEX. 041 
 
 [References are to l'ages.J 
 
 s 
 
 SATISFACTION, 
 
 when receipt for taxes not, 399. 
 
 SAVING CLAUSE, 
 
 effect of, in repealing statute, 308 (note), 424. 
 
 SCHOOLHOUSES, 
 
 exemption of, 78, 101, 112. 
 
 SCIENTIFIC SOCIETIES, 
 exemption of, 84. 
 
 SEAMEN, 
 
 homes for, 97, 101. 
 societies to improve, 78. 
 
 SECOND DUTIES, 
 
 when not to be imposed, 144. 
 
 SECRET TRUST, 
 
 exemption of legacies under, 92, 93. 
 
 SECURITIES, 
 
 taxation of personalty situate abroad, 146, 148-151. 
 
 stocks of foreign corporations liable, 149, 150. 
 
 notes secured by mortgages in other states, 150. 
 
 personalty passing under trust deed to foreign corporation, 151. 
 
 SEMITNARY OF LEARNING, 
 
 Young Men's Christian Association not exempt as, 111. 
 
 SERVICES, 
 
 legacy for, when not taxable, 343, 344. 
 
 SHARES, 
 
 see "Nonresident Decedents"; "Securities." 
 
 SHERIFF, 
 
 when not authorized to pay succession tax, 393. 
 
 SISTERS, 
 
 see "Exemptions." 
 
 SITUS, 
 
 legatee's or owner's domicile as to situs of personalty, 64. 
 doctrine of domicile, residence, or situs first announced, regard- 
 ing personalty, in 1830, 161. 
 law inker.— 41
 
 642 1NDKX. 
 
 [References are to Pages.] 
 
 SITUS— Continued, 
 
 as to tangible and intangible property, 173 (note). 
 
 of bonds and stocks, 176, 177, 180. 
 
 bonds and stocks of nonresidents in New York, when they have 
 
 no situs there, 180, 181 et seq. 
 of foreign legacies, 187, 192, 197. 
 when property cannot have more than one, 193. 
 of real estate for taxation, 190, 193. 
 lex situs, as considered by Justice Gray, 196. 
 considered as to taxing nonresidents, 192 et seq., 194. 
 
 see "Domicile"; "Nonresident Decedents"; "Resident Dece- 
 dents." 
 
 SLAVE, 
 
 gift of freedom to, taxed, 17 (note), 343 (note 292). 
 
 SMALL ESTATES, 
 
 when exempted, 134 et seq. 
 see "Exemptions." 
 
 SMITH, ADAM, 
 
 upon legacy tax, 8. 
 
 SOCIETIES, 
 
 see "Almshouses"; "Exemptions." 
 
 SPAIN, 
 
 succession taxes in, 2. 
 
 SPECIAL ACTS, 
 
 exemption, when by, 93, 94, 98, 99, 111, 112. 
 
 exemption of charitable institutions under general or, 94-96, 
 
 111, 112. 
 when corporation is not exempted by general or, 99, 100. 
 when charitable institution not exempt by, 103. 
 legacy act valid as, 45. 
 
 SPECIAL GUARDIAN, 
 
 of infants, when to be appointed in New York, 256, 257, 258 
 (note). 
 
 SPECIAL TAX, 
 
 legacy tax laws valid as general or, 45, 104. 
 statutes imposing, strictly construed, 75.
 
 INDEX. 643 
 
 [References are to Pages.] 
 
 STAMP TAX, 
 
 English legacy, when a species of, 9. 
 
 STANDARDS, 
 
 of mortality and of value to be followed in New York, 225. 
 
 STATE, 
 
 general power of, as to taxation, 29 et seq. 
 power of, to regulate succession to property, 30, 37, 65. 
 power of, to tax securities held by resident decedents, 65. 
 power of, to tax foreign decedents' estates, 64, 65 et seq., 159, 166. 
 jurisdiction over tangible and intangible property of nonresi- 
 dents, 166, 172. 
 exemptions granted by, when constitutional, 68. 
 receipt for tax, when not estoppel against, 399. 
 when not estopped from taking appeal, 259. 
 when not barred from collecting tax, 407. 
 neglect of to prosecute proceedings for tax, 260. 
 statute of limitations, when not binding upon, 406. 
 see "Constitutionality"; "Jurisdiction." 
 
 STATE'S ATTORNEY, 
 
 proceeding by, to collect tax, in Illinois, 396, 397. 
 
 STATE COMPTROLLER OF NEW YORK, 
 
 supreme court may reappraise on application of, 207, 259. 
 power of, to compromise with beneficiaries, 383. 
 report as to revenue, 21, 22, note. 
 
 STATE COURTS, 
 
 power of supreme court of United States to review, 402 (note). 
 
 STATE SECURITIES, 
 
 when liable to inheritance tax, 59 et seq. 
 
 STATE TREASURER, 
 
 when to be made party upon appeal, 404. 
 
 STATUTE, 
 
 when it takes effect at common law, 419. 
 
 exempting from taxation, strictly construed, 74, 386. 
 
 when construed strictly against state, 75. 
 
 when remedy under conclusive, 3S6. 
 
 when means of enforcing exclusive, 3S6 (note 2). 
 
 when common-law methods may be pursued, 387.
 
 644 INDEX. 
 
 [References are to Pages.] 
 
 STATUTE— Continued, 
 
 taking effect immediately, effect of, 420-422. 
 
 retroactive, amendatory, and repealing, 417 et seq. 
 
 when retroactive, 54 et seq., 417, 418. 
 
 when not ex post facto, 54 et seq., 56. 
 
 amendatory, concerning adopted children in New York, 121 et 
 
 seq., 421, 422. 
 legitimating children, effect of, 130. 
 repeal of, effect on taxes due, 423, 424. 
 early, of Pennsylvania, as to appraisement and remainders, 233 
 
 (note), 
 of limitations, when state not bound by, 406. 
 
 where state neglects to enforce tax lien, 408, 409. 
 when not a bar to recovery of penalty, 410 (note). 
 debt barred by, and left as legacy, not liable, 407. 
 debt released by will, and barred by statute of limitations, not 
 
 taxable, 347. 
 of limitations, none in favor of owners, devisees, etc., 407. 
 
 as to purchasers of real estate subject to tax, 406, 407, 410. 
 against tax, as penalty or forfeiture, 6, 7, 406 (note), 
 see "Remedy and Practice." 
 
 STATUTE OF FRAUDS, 
 
 when state cannot take advantage of, to impose tax, 335. 
 
 STATUTE OF LIMITATIONS, 
 
 see "Remedy and Practice"; "Statute." 
 
 STATUTES, 
 
 of New York, from 1887 to 1895, Appendix, 425, 458. 
 New Jersey, for 1894, Appendix, 459, 466. 
 Pennsylvania, from 1SS7 to 1S95, Appendix, 467, 476. 
 Massachusetts, from 1891 to 1895, Appendix, 477, 483. 
 Maine, for 1893, 1895, Appendix, 4S4, 4S8. 
 Ohio, for 1893, 1894, Appendix, 489, 497. 
 Connecticut, for 1SS9, 1893, Appendix, 498, 502. 
 Maryland, Code 1S88, Appendix, 503, 509. 
 California, for 1893, 1895, Appendix, 510, 517. 
 Illinois, for 1895, Appendix, 518, 526. 
 
 STATUTORY EXEMPTIONS, 
 enumerated, 77 et seq. 
 see "Exemptions."
 
 LNi/JEX. 645 
 
 [References are to Pages.] 
 
 STATUTORY LIENS, 
 
 when taxes aue, 405 et seq., 411 et seq. 
 see "Lieu." 
 
 STAY OF PROCEEDINGS, 
 
 effect of, upon interest and penalty on tax, 415. 
 
 STEPPARENT, 
 
 when not a parent, under New York statute, 123. 
 
 STOCK CORPORATIONS, 
 
 included in term "incorporated companies," 79 (note), 95-99. 
 when not exempt, 79 (note), 95, 97-99. 
 
 STOCKS, 
 
 and bonds, appraisement of in New York, 209, 210. 
 
 giving a special situs for taxation, 192, 194, 195. 
 
 of nonresident decedents, when exempt in New York, 180 et seq., 
 
 1S3, 1S4. 
 objections to rule of exempting foreign stocks and bonds, 185, 
 
 1ST. 
 of nonresident decedents exempt in Pennsylvania, 175-179, et seq. 
 transfer of, by foreign executors, etc., 176, 370-372. 
 
 see "Nonresident Decedent"; "Resident Decedents"; "Securi- 
 ties"; "Tangible and Intangible Property." 
 
 STRANGERS TO THE BLOOD, 
 
 when illegitimate children legitimated not, 131. 
 
 SUCCESSION, 
 
 definition of, 134, 274. 
 
 what deemed, for purpose of taxation, 191 et seq. 
 
 rule of, as to of "foreign legacies," 197. 
 
 where it takes place for purposes of taxation, 166 et seq. 
 
 taxation of, in two states, 191, 192 et seq. 
 
 SUCCESSION AND LEGACY TAXES, 
 
 approved by jurists and political economists, 2, 3 (notes). 
 
 authors and books upon, 11 (note). 
 
 a successful means of revenue, 2, 3, 11, 12, 21 (note). 
 
 reasons for such taxes, 2, 5. 
 
 the tax denned, 5. 
 
 defined and theory of discussed, 5, 630 et seq. 
 
 the Roman law in relation to, 7. 
 
 succession, legacy, estate, and other duties in England, 8, 11, 12.
 
 646 INDEX. 
 
 [References are to Pages.] 
 
 SUCCESSION AND. LEGACY TAXES— Continued, 
 under the acts of congress, 14, 274. 
 the American statutes enumerated, 13. 
 exemptions under American statutes, 75 et seq. 
 the Canadian statutes, 26 et seq. 
 in Australian colonies, 2. 
 proposed legislation on in United States, 25. 
 nature and constitutionality of, 30 et seq. 
 not a penalty or forfeiture, 6, 7, 406 (note). 
 power to impose upon foreign real estate, 65, 67. 
 when municipal corporations may impose, 71, 72. 
 exemptions under, when constitutional, 68. 
 
 see "Constitutionality"; "Remedy and Practice." 
 
 SUCCESSION DUTY ACT, 
 
 history of, in England, 8 et seq. 
 
 synopsis of, 9-12 (note). 
 
 rates of duty under, 12, 13 (note). 
 
 revenue derived from, 11, 12. 
 
 English writers on this and other English duties, 11 (note 39). 
 
 comments of Layton on, 10 (note). 
 
 exemptions under, 10, 11, 92. 
 
 property of nonresident decedents under, 159 et seq., 161-163 et 
 
 seq. 
 conflict between, and legacy duty act, 161-163 et seq. 
 see "Nonresident Decedents." 
 
 SUPERINTENDENT INSURANCE DEPARTMENT, 
 
 to determine value of estates in New York, 225, 280, 281. 
 certificate of, when conclusive, 225, 280, 281. 
 
 SUPREME COURT OF NEW YORK, 
 
 has no original jurisdiction to hear the proceeding except by ap- 
 peal, 352, 353. 
 
 power of, to reappraise, on application of state comptroller, 207, 
 353, 354. 
 
 SUPREME COURT UNITED STATES, 
 
 power of, to review state court by appeal, 402. 
 
 SURETIES, 
 
 of register of wills, liability of, 362 (note), 
 see "Register of Wills."
 
 INDEX. 647 
 
 [References are to Pages.] 
 
 SURROGATE, 
 
 jurisdiction of, 204-206, 348, 349, 3S2, 394, 395. 
 
 constitutionally empowered to hear and determine, 71, 348, 349. 
 
 when he acts as an assessor, 204-206. 
 
 when jurisdiction of, exclusive in the first instance, 349, 350, 352, 
 394, 395. 
 
 when jurisdiction exclusive of supreme court in New York, 205, 
 206, 352, 395. 
 
 when supreme court, on application of state comptroller, may order 
 reappraisement after decree of, 353, 395. 
 
 has power to direct a tax to be refunded by county treasurer, 351. 
 
 may authorize state comptroller to refund a tax, 351, 352. 
 
 duty of first acquiring jurisdiction as regards real estate, 354. 
 
 application of, for certificate, superintendent of insurance, 2S0, 281. 
 
 to hear all questions relating to tax, 349. 
 
 questions of liability and exemption, 349-352. 
 
 has jurisdiction over real estate in other counties, 354. 
 
 when decree of, conclusive upon state, 350, 355. 
 
 when decree conclusive upon adopted son, 355. 
 
 full power to construe will, 350, 351. 
 
 may declare provisions of will void, 351. 
 
 may pass upon the validity of a bequest in appraisement proceed- 
 ings, 351. 
 
 when not bound by appraiser's report, 263, 349, 352, 354. 
 
 must notify county treasurer of all proceedings, 355. 
 
 will not enforce proceedings until after IS months from death, 355. 
 
 power of, to enforce decrees, 355. 
 
 may enforce proceedings by contempt, 355. 
 
 may issue execution and attachment, 356. 
 
 may direct executors to pay tax, 356. 
 
 may order reference upon disputed questions, 356, 401. 
 
 no jurisdiction to compel legatee to repay taxes to executor, 356, 
 382. 
 
 when no jurisdiction to compel executor to pay tax, 356. 
 
 power of, to take testimony, 401. 
 
 rules of, in New York county, 356 (note 37). 
 
 rules of, in New York county, with reference to appeals, 257 (note). 
 
 duties of, as to appointing appraisers, 210. 349. 
 
 see "Appraisement"; "Appraiser"; "Remedy and Practice."
 
 648 INDEX. 
 
 [References are to Pages.] 
 
 SURROGATES' COURTS, 
 
 jurisdiction of, 71, 204-206, 348-350, 352, 354, 382, 394, 395. 
 rules of, in New York county, upon filing appraiser's report, 257. 
 constitutionally empowered to hear all questions, 71, 318. 
 proceedings in, to collect tax, 357, 359 et seq., 395-397. 
 
 SURVIVORSHIP, 
 
 presumption as to, where death by drowning, 133. 
 
 SWEDEN, 
 
 succession taxes in, 2. 
 
 SWITZERLAND, 
 
 succession taxes in, 2. 
 
 T 
 
 TANGIBLE AND INTANGIBLE PROPERTY, 
 
 specified and defined, 173 (note 104), 174. 
 
 rule of distinction between, and intangible property, 148, 172, 
 
 191. 
 taxation of, 174. 
 
 taxation of, in Connecticut, Massachusetts, and other states, 168. 
 as to property of nonresidents, 174, 194, 195. 
 rule in Pennsylvania as to, 175, 176. 
 rule as to in New York, 180 et seq. 
 Euston's Case, 181. 
 Romaine's Case, 182. 
 James' Case, 183 et seq. 
 objections to James' Case, 185. 
 Phipps' Case, 187 et seq. 
 
 see "Nonresident Decedents"; "Property"; "Real Estate." 
 TAXATION, 
 
 the general rules as to, 74. 
 
 exemptions from, under general statutes of New York, 77 et seq. 
 exemptions from, in other states, 84, 91. 
 where succession takes place for purpose of, 191 et seq. 
 fiction of "Mobilia sequuntur personam" not applicable to, 66 
 (note), 167, 168, 169 et seq. 
 
 see "Mobilia Sequuntur Personam"; "Succession"; "Succes- 
 sion and Legacy Taxes."
 
 INDEX. 049 
 
 [References are to Pages.] 
 
 TAX COLLECTOR, 
 
 compelled to pay tax, may recover from person assessed, 382. 
 
 TAXES, 
 
 "collateral and direct inheritance" defined, 5 et seq., 30 et seq. 
 
 imposed upon net value of estates, 200, 201, 324, 325. 
 
 not imposed upon subsequent increase or income, 260, 261, 418, 
 
 419. 
 only discharged by payment, 376. 
 in what county to be paid, 354, 362. 
 failure of remainder-man to file bond, become due and payable, 
 
 317, 320. 
 bona fide transfer inter vivos to defeat, effect upon, 329, 334, 335. 
 upon fraudulent transfers, gifts inter vivos, causa mortis, etc., 
 
 327 et seq. 
 interest and penalties for nonpayment of, 411 et seq. 
 interest on, not implied, 411. 
 when general estate chargeable with, 378. 
 when legacy free of, 378. 
 
 refund of, for debts after payment, 198, 200-202. 
 refund of, for debts, rule in England, 202. 
 refund of, for debts, etc., in New York, 201 (note), 
 restitution of, in New York, where erroneously paid, 403, 404. 
 effect of amendatory statutes upon, when due, 419, 420. 
 security for, on appeal, 402. 
 
 TENANT BY ENTIRETY, 
 
 share of wife as, 227, 284, 269. 
 
 when taxable, 284, 285. 
 
 right of wife as to partition, 269. 
 
 TENANT FOR LIFE, 
 see "Life Tenant." 
 
 TENANT IN REMAINDER, 
 
 see "Remainder-Man"; "Remainders, Contingent and Future Es- 
 tates." 
 
 TENNESSEE, 
 
 history of collateral tax in, 23. 
 
 exemptions under statute of, 90. 
 
 tax upheld as constitutional, see Addenda, State v. Alston, xlx.
 
 050 INDEX. 
 
 [References are to Pages.] 
 
 TERMS OF YEARS, 
 
 duty of appraiser as to, 209, 225, 226. 
 
 TESTATES, 
 
 see "Intestates"; "Nonresident Decedents"; "Resident Dece- 
 dents." 
 
 TESTATOR, 
 
 tax not generally a charge upon estate of, 377, 378, 387. 
 power of, to charge tax upon general estate, 378, 379. 
 
 TESTIMONY, 
 
 power of appraiser and surrogate to take, 213, 401. 
 
 TITLE, 
 
 moneys paid to extinguish, not taxable, 385. 
 
 TITLE OF ACT, 
 
 constitutional objections to, 51, 57. 
 see "Acts"; "Statutes." 
 
 TRACT SOCIETIES, 
 
 exemption of, in New York, 84. 
 
 TRANSFERS, 
 
 inter vivos or causa mortis, to evade tax, 327 et seq. 
 see "Gifts inter Vivos and Causa Mortis." 
 
 TREASURER, 
 
 of county, duty of, when tax unpaid, 356-359. 
 as to fees of and their successors, in Pennsylvania, 363 (note), 
 right of, to sue executor, at law, in New York, 362 (note), 391. 
 commissions of, and effect of receipt, 362 (note), 
 see "County Treasurer." 
 
 TREATY, 
 
 when tax does not conflict with, 58. 
 tax conflicting with, invalid, 58. 
 when retroactive upon tax laws, 58. 
 
 TREVOR, 
 
 Ch. C, on English duties, 11. 
 
 TRUST DEEDS, 
 
 property passing under, when taxable, 327, 331, 332 et seq. 
 see "Gifts inter Vivos and Causa Mortis."
 
 INDEX. 651 
 
 [References are to Pages.] 
 
 TRUSTEES, 
 
 liability of, under English acts, 12, 389, 390. 
 
 liability of, under Pennsylvania act, 390. 
 
 may be cited by register of wills in Pennsylvania, 362. 
 
 liability of, under New York acts, 390, 391. 
 
 when expenses of, cannot be deducted from estate, 381. 
 
 personally liable for tax until paid, 303, 365, 374. 
 
 when liable to contempt proceedings, 355. 
 
 when liable to attachment or execution, 356. 
 
 to give bond to pay tax, 356, 363. 
 
 to pay tax to county treasurer, etc., 364. 
 
 when personally liable for costs in New York, 360. 
 
 to deduct tax from legacies, 364, 365, 369. 
 
 canuot deliver legacy until tax collected, 364. 
 
 full power to collect tax, 364, 365. 
 
 may sell property to pay tax, 364-3G0. 
 
 mode of payment by will not sanctioned, 379, 380. 
 
 when property passing to, under trust deeds, taxable, 331, 332 
 
 et seq. 
 when not liable for tax upon foreign legacies, 197, 371. 
 liability of, as to legatee, etc.. 377-380. 
 liability of legatees to, for taxes paid, 373, 374. 
 bequest to, in lieu of cojamissions, when exempt, 83 et seq., 366. 
 when commissions exceed amount allowed by law in New York, 
 
 366-368. 
 with power of appointment, liability of, 249, 305, 339. 
 foreign, liability of, for tax, 370, 371. 
 entitled to notice of appraisement, 369. 
 proceeding of, to have property assessed, 369, 397. 
 to take duplicate receipts for tax paid, 364. 
 see "Administrators"; "Executors." 
 
 TRUSTS, 
 
 deeds and gifts to evade tax, liability of, 327 et seq. 
 see "Gifts inter Vivos and Causa Mortis."
 
 652 INDEX. 
 
 [References are to Pages.] 
 
 u 
 
 UNAVOIDABLE CAUSE, 
 
 of delay in settling estate, effect of upon penalty, 413, 414, 415, 416. 
 In New York, must prevent the determination and payment of tax, 
 
 416. 
 defined, 414. 
 
 UNCERTAIN EVENT, 
 
 see "Remainders, Contingent and Future Estates." 
 
 UNITED STATES, 
 
 bonds of, when taxable, 59. 
 
 when legacy to, taxable, 115, 118, 119. 
 
 VALUABLE CONSIDERATION, 
 
 transfer inter vivos or causa mortis, to avoid tax, must be upon, 
 329. 
 
 VALUE, 
 
 how determined, 198 et seq., 216, 218 et seq. 
 
 determined by superintendent of insurance in New York, 225, 
 
 280, 281. 
 appointment of appraiser to ascertain, 209 et seq. 
 when property not appraisable upon, increased, 260 et seq. 
 rules where debts exceed value of estate, 198 et seq. 
 see "Appraisement"; "Appraiser." 
 
 VENDORS AND PURCHASERS, 
 
 when vendor liable to purchasers for taxes paid, 393, 394. 
 liability of, under English statutes, 377 (note), 405 (note), 
 see "Real Estate." 
 
 .VESTED ESTATES, 
 
 under New York statutes, 275 (note). 
 
 defined, under New York statute, 279, 280 (note), 283 (note). 
 
 what estates embraced within, 276. 
 
 see "Remainders, Contingent and Future Estates." 
 
 VESTED RIGHTS, 
 
 when not affected by amendatory statutes, 421, 422.
 
 INDEX. 653 
 
 [References are to Pages.] 
 
 VIRGINIA, 
 
 tax in considered, 13, 17. 
 history of laws in, 17 (note 53). 
 exemptions under statute of, 85, 100, 111. 
 
 W 
 
 WAIVER, 
 
 by remainder-man, of right to file bond, 320, 32L 
 
 WALLACE, ROBERT J., 
 epitome of death duties, 11. 
 
 WEDLOCK, 
 
 exemption of persons born in, 76, 83, 84, 87, 88, 120. 
 when illegitimate children deemed born in, 130. 
 
 WEST VIRGINIA, 
 
 tax in, considered, 17. 
 
 statute of taxes, public securities, 59 (note). 
 
 exemptions under statute of, 85. 
 
 WIDOW, 
 
 word defined, 131. 
 
 when liable to tax, 131. 
 
 and husbands of deceased daughters, 132. 
 
 value of life estate while she is a, or until she marries, 228. 
 
 rule as to taxation where she has power of disposition, 242, 243, 
 
 286. 
 right as life tenant of, to use up principal, 287. 
 when remainder to, in trust, taxable, 243. 
 dower of exempt, 131. 
 
 WIFE, 
 
 liability of, as tenant by entirety, 227, 284, 269. 
 exemptions of, 82, 84, 85 et seq. 
 
 see '"Exemptions"; "Tenant by Entirety. 1 * 
 
 WILL, 
 
 right to take under a privilege, 5, 6, 30 et seq. 
 
 bill to restrict inheritance by, 6 (note). 
 
 when probate of, has no effect upon tax, 166. 
 
 power of sale in, as to foreign real estate, effect of, 157.
 
 654 INDEX. 
 
 [References are to Pages.] 
 
 WILL— Continued, 
 
 when liability for tax imposed upon executor by, 377, 378 et seq. 
 when declaration in, as to domicile, controlling, 158. 
 duty of appraisers with respect to, 214. 
 
 YOUNG MEN'S CHRISTIAN ASSOCIATION, 
 when not exempt from taxation, 111, 112. 
 
 WEST PUBLISHING CO., PRINTERS AND 8TEBEOTYPEBS, ST. PAUL, MINN.
 
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