tablish a trust; 4. The deed from Bowley to Cook, agent, dated. June 22, 1898, operated as a discharge of the mortgage given by Cook to Bowley; 5. The words "trustee" and "agent" in the deeds do not affect the construction of the deeds; 6. These words must be rejected as surplusage; 7. As matter of law, upon the evidence, the demandant is entitled to judgment; 8. The tenant is not entitled to judgment as matter of law. The judge made all the rulings, except the fourth, seventh, and eighth. Demandant excepted. Judgment for the tenant.

F. H. Pearl, for the demandant.

H. J. Cole, for the tenant.

3 MORTON, J. The effect of the levy was to devest the tenant of the equity of redemption: Capen v. Doty, 13 Allen, 262; Pub. Stats., c. 172, sec. 45; Stats. 1896, c. 464, sec. 1. All that remained to the tenant was the right to redeem from the levy: Pub. Stats., c. 172, sec. 32. This was taken away by the foreclosure proceedings, and the deed under the power of sale contained in the mortgage operated as a conveyance of the title to the tenant, and not as a discharge or release of the mortgage. The doctrine of merger does not apply. The rulings which were requested and refused were rightly refused. Judgment for the tenant.

EXECUTION SALES OF THE EQUITY OF REDEMPTION are discussed in the monographic note to Atkins v. Sawyer, 11 Am. Dec. 193-198.

BONNEY v. BONNEY.

[175 Massachusetts, 7.]

MARRIAGE AND DIVORCE-CRUEL TREATMENT.-The acts of a wife in failing to stay at home and take care of her sick husband, or in refusing to consent to his hiring a nurse so to do, and in neglecting to properly administer medicines to him, he being under the care of a physician and financially able to procure proper food and nursing, do not constitute such cruel and abusive treatment as will authorize a suit for divorce, though his health was temporarily injured thereby.

P. A. Aubertin and R. O. Harris, for the libelant.

No counsel appeared for the libelee.

LORING, J. We are of opinion that the acts of the libelee did not amount to cruel and abusive treatment within

the meaning of the Public Statutes, chapter 116, section 1. The libelant testified: "There was nobody else in the family to administer medicines except my wife; she gave me medicines when she was there; she did not remain at home all the time; she went to the theater and dances; she was at work also. I was of financial ability to procure a servant. I endeavored to procure a nurse or housekeeper to wait upon me. I wanted to; she said if I did she would leave the place." Another witness for the libelant testified that the libelee "was off on her wheel sometimes; she could not do as she could if she stayed at home."

Without doubt the libelee failed to perform the duties of a wife in failing either to stay at home and take care of her husband, or to consent to her husband hiring a nurse or housekeeper so to do. But the libelant was not dependent solely upon his wife. He was under the care of a physician, and had the money with which to procure proper food and nursing. It appears that he did in fact procure the proper food when he got up from his sick bed, by boarding with the occupants of another tenement in the same house, and that he afterward went to Jamaica in search of health. If he was not content with the care his wife gave him while he was sick in bed, his remedy was to hire a nurse, even if his wife wrongly threatened to leave his tenement if he did so. There was no pretense that this could not have been done through the physician in attendance.

Under these circumstances the fact that the libelant's health was temporarily injured by the libelee's failure to comply with the doctor's orders as to the libelant's diet and medicines is not sufficient. Her action in that respect may in one sense be said to be cruel, and the libelant may be said to have been abused by her. But it is not such cruel and abusive treatment as under the circumstances of the libelant will cause injury to his health or create danger of such injury, or reasonable apprehension of such danger, if the parties continue to live together; and nothing less will make out a case of divorce on this ground: Bailey v. Bailey, 97 Mass. 373, 380, 381; Lyster v. Lyster, 111 Mass. 327-329.

Libel dismissed.

DIVORCE ON THE GROUND OF CRUELTY will be denied. If there is no actual bodily violence, unless the treatment or neglect is such as impairs the health, or renders cohabitation intolerable or unsafe: See the monographic note to Reinhard v. Reinhard, 65 Am. St. Rep. 78, on cruelty as a ground for divorce.

FROTHINGHAM v. SHAW.

[175 Massachusetts, 59.]

ESTATES OF DECEDENTS - COLLATERAL INHERITANCE TAX-PERSONAL PROPERTY-CONFLICT OF LAWS. Stocks and bonds of foreign corporations, including bonds secured by mortgage, situated in one state, but owned by a resident of another state, are for the purposes of taxation treated as having a situs at the domicile of their owner, and upon the death of such owner are subject to the payment of a collateral inheritance tax imposed by the law of the domicile.

ESTATES OF DECEDENTS-CONFLICT OF LAWS-SUCCESSION TAX.—Legacy and succession duties as such are payable at the place of domicile in respect to movable property wherever situated, since the succession or legacy takes effect by virtue of the law of the domicile.

EXECUTORS AND ADMINISTRATORS.-PAYMENT BY A FOREIGN DEBTOR TO THE DOMICILIARY ADMINISTRATOR will be a bar to a suit brought by an ancillary administrator subsequently appointed.

Petition by the executor of a will for instructions as to the payment of a collateral inheritance tax on residuary legacies. G. R. Nutter and T. L. Frothingham, for the petitioners. A. W. De Goosh, assistant attorney general, for the respond ent.

GO MORTON, J. At the time of his death the testator was domiciled at Salem, in this commonwealth, and his estate, except certain real estate situated here and appraised at two thousand one hundred dollars, and cash in a savings bank in Salem amounting to nine hundred and ninety-three dollars, was, and for many years had been, in the hands of his agents in New York, and consisted of bonds and stock of foreign corporations, a certificate of indebtedness of a foreign corporation, bonds secured by mortgage on real estate in New Hampshire, the makers living in New York, and of cash on deposit with a savings bank and with individuals in Brooklyn-the total being upward of forty thousand dollars.

There has been no administration in New York, and the petitioners have taken possession of all the property except the real estate, and have paid all of the debts and legacies except the residuary legacies. None of the legacies are entitled to exemption if otherwise liable to the tax.

The petitioners contend that the stocks, bonds, etc., were not "property within the jurisdiction of the commonwealth,"

within the meaning of the Statutes of 1891, chapter 425, section 1, and that, if they were, the succession took place by virtue of the law of New York and not of this state.

It is clear that if the question of the liability of the testator to be taxed in Salem for the property had arisen during his lifetime he would have been taxable for it under the Public Statutes, chapter 11, sections 4, 20, notwithstanding the certificates, etc., were in New York: Kirtland v. Hotchkiss, 100 U. S. 491; State Tax on Foreign-Held Bonds, 15 Wall. 300; Cooley on Taxation, 2d ed., 371; and the liability would have extended. to and included the bonds secured by mortgage: Kirtland v. Hotchkiss, 100 U. S. 491; State Tax on Foreign-Held Bonds, 15 Wall. 300; Hale v. County Commrs., 137 Mass. 111. It is true that the Public Statutes provide that personal property wherever situated, whether within or without 61 the commonwealth, shall be taxed to the owner in the place where he is an inhabitant. But it is obvious that the legislature cannot authorize the taxation of property over which it has no control, and the principle underlying the provision is that personal property follows the person of the owner, and properly may be regarded, therefore, for the purposes of taxation, as having a situs at his domicile, and as being taxable there. After the testator's death the property would have been taxable to his executors for three years, or until distributed and paid over to those entitled to it, and notice thereof to the assessors; showing that the fiction, if it is one, is continued for the purposes of taxation after the owner's death: Pub. Stats., c. 11, sec. 20, cl. 7; Hardy v. Yarmouth, 6 Allen, 277. In the present case, the tax is not upon property as such, but upon the privilege of disposing of it by will, and of succeeding to it on the death of the testator or intestate, and it "has some of the characteristics of a duty on the administration of the estates of deceased persons": Minot v. Winthrop, 162 Mass. 113, 124; Callahan v. Woodbridge, 171 Mass. 595; Greves v. Shaw, 173 Mass. 205; Moody v. Shaw, 173 Mass. 375. In arriving at the amount of the tax, the property within the jurisdiction of the commonwealth is considered, and we see no reason for supposing that the legislature intended to depart from the principle heretofore adopted, which regards personal property for the purposes of taxation as having a situs at the domicile of its owner. This is the general rule: Cooley on Taxation, 2d ed., 372; and though it may and does lead to double taxation, that has not been accounted a sufficient objection to taxing personal prop

erty to the owner during his life at the place of his domicile, and we do not see that it is a sufficient objection to the imposition of succession taxes or administration duties under like circumstances after his death.

In regard to the mortgage bonds, it is to be noted, in addition to what has been said, that this case differs from Callahan v. Woodbridge, 171 Mass. 595. In that case the testator's domicile was in New York, and it does not appear from the opinion that the note and mortgage deed were in this state. In this case the domicile was in this commonwealth, and we think that for the purposes of taxation the mortgage debt may be regarded as having a situs here. This is the view taken in Hanson's Death 62 Duties, fourth edition, 239, 240, which is cited apparently with approval by Mr. Dicey, though he calls attention to cases which may tend in another direction: See Dicey on Conflict of Laws, 319, note 1.

It seems to us, therefore, that for the purposes of the tax in question the property in the hands of the executor must be regarded as having been within the jurisdiction of this commonwealth at the time of the testator's death: See In re Swift, 137 N. Y. 77; Miller's Estate, 182 Pa. St. 157.

The petitioners further contend that the succession took place by virtue of the law of New York. But it is settled that the succession to movable property is governed by the law of the owner's domicile at the time of his death. This, it has been often said, is the universal rule, and applies to movables wherever situated: Stevens v. Gaylord, 11 Mass. 256; Dawes v. Head, 3 Pick. 128, 144, 145; Fay v. Haven, 3 Met. 109; Wilkins v. Ellett, 9 Wall. 740; 108 U. S. 256; Freke v. Carbery, L. R. 16 Eq. 461; Attorney General v. Campbell, L. R. 5 H. L. 524; Duncan v. Lawson, L. R. 41 Ch. D. 394; Sill v. Worswick, 1 H. Black. 665, 690; Dicey on Conflict of Laws, 683; Story on Conflict of Laws, 7th ed., secs. 380, 481.

If there are movables in a foreign country, the law of the domicile is given an extraterritorial effect by the courts of that country, and in a just and proper sense the succession is said to take place by force of and to be governed by the law of the domicile. Accordingly, it has been held that legacy and succession duties as such were payable at the place of domicile in respect to movable property wherever situated, because in such cases the succession or legacy took effect by virtue of the law of domicile: Wallace v. Attorney General, L. R. 1. Ch. D. 1;