viduals 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.1

Upon principle, if the tax can be imposed upon the tangible personal property of a non-resident decedent within the State, as held in Orcutt's Appeal,” there would seem to be no just reason why it should not equally be imposed upon the intangible property actually within the taxing State.

3

In conclusion, it may be said that the cases which exempt tangible or intangible property of non-resident decedents actually within the taxing State would seem to be objectionable upon several grounds:

4

First. The fiction upon which the rule is based exempting such property, did not originally relate to questions of taxation, but, as we have seen, was based merely upon questions 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.5

1

Cooley on Taxation, 2d ed. 23; citing Am. Coal Co. v. Comm. 59 Md. 185; Baltimore v. R. R. Co. 57 Id. 31.

3 Matter of Romaine, N. Y. Law Jour. Mch. 19, 1890; Matter of Vinot, 7 N. Y. Supp. 517; U. S. v. Rankin, 8 Fed. Rep. 874; see Matter of Tulane, 51 Hun, 213.

5 See remarks of Lord Brougham in Thompson v. AdvocateGen. 12 C. & F. 28; Bruce v. Bruce, 2 Bos. & P. 229; Catlin v. Hull, 21 Vt. 158; cited and approved in Hoyt v. Comm. 23 N. Y.

"The fiction or maxim mobilia personam sequuntur," says Comstock, C. J., in Hoyt v. Comm.1 "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 prevent 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.”

Second. It unjustly discriminates against the estates of resident decedents, and thus allows nonresidents greater privileges than those conferred upon the former.2

Third. It permits a vast amount of personal property, under a mere fiction of law, such property being protected at all times by the State, to escape the common burden imposed upon like property belonging to citizens.

5. Foreign legacies.-The rule would appear to be equally well established under these statutes that as to the property of a non-resident decedent in the

232; Whart. Private International Law, secs. 11-13, 297; Green v. Van Buskirk, 7 Wall, 150; Hervey v. Locomotive Works, 93 U. S. 664; Lewis v. Woodford, 58 Tenn. 25; Burtwhistle v. Vardill, 3 B. & C. 438, 451; Alvaney v. Powell, 2 Jones' Eq. 51; St. v. Dalrymple, 70 Md. 249.

1 23 N. Y. 228, followed in Graham v. Bank, 84 N. Y. 400, 401; Matter of Romaine, N. Y. Law Jour. Mch. 19, 1890; see People ex rel. Darrow v. Coleman, 119 N. Y. 137.

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 liability 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.'

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 upon legatees or next of kin merely because of their residence within its jurisdiction.2

So where, under a general tax law, personal property sought to be taxed belonged to a non-resident, 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

1 State v. Brevard, Phil. Eq. R. 141; Alvaney v. Powell, 2 Jones' Eq. 51; St. v. Brim, 4 Id. 301; Com. v. Duffield, 12 Pa. St. 277; Hood's Est. 21 Id. 106; Orcutt's App. 97 Id. 184; Drayton's App. 61 Id. 172; In re Tootall's Trusts, L. R. 23 Ch. Div.

2 St. v. Brim, supra; Hood's Est. supra.

trustees resided in the latter State did not warrant the imposition of a tax upon such property.1

§ 6. Rules where non-resident decedent's debts exceed value of estate.-At law the settlement of the estate of a non-resident decedent, 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 administrator at the place of domicile for distribution among the unpaid creditors and next of kin.3

But, as debts or other lawful obligations exceeding the supposed value of the estate may often exist at the domicile unknown to local representatives and tribunals, the difficulty early suggested itself in such cases of ascertaining the exact amount passing to the legatee or devisee whose interest it was sought to tax, and thus making it uncertain to some extent whether, should there be debts, any 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.*

1 Peo. ex rel. Darrow v. Coleman, 119 N. Y. 137.

2 See, also, Chapter V, as to deduction of debts upon the appraisement.

3 In re Short's Est. 16 Pa. St. 66; Del Busto's Est. 23 W. N. C. 111; Matter of Enston, 113 N. Y. 181.

Orcutt's App. 97 Pa. St. 185, 186; In re Short's Est. 16 Id.

The same ground of objection was raised in England under the legacy and succession laws as to all personal property of non-residents,' although as we have seen the authorities in that country are not harmonious upon the subject, and the succession tax is in many instances imposed upon estates of nonresident decedents.2

3

In New York, in speaking of this subject under 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 administration and the debts and liabilities of the deceased have been ascertained and deducted at the place of his domicile. Suppose a non-resident 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 administration can only be ascertained at his domicile, where his estate must be finally administered and adjusted, and there can be no way of adjusting the estate here, as there is no machinery in the law here appropriate to such a pur

66; Com's. App. 34 Id. 204; Strode v. Com. 52 Id. 181; Com. v. Coleman, 52 Pa. St. 470, 472; Hood's Est. 21 Id. 106; Matter of Enston, 113 N. Y. 181; Matter of Tulane, 51 Hun, 213; Del Busto's Est. 23 W. N. C. 111; Bacon's Est. 3 Del. Co. Rep. 603.

2

Wallace v. Atty.-Gen. L. R. I Chanc. App. 1.

Supra, p. 88; In re Lovelace, 4 DeG. & J. 340; In 1e Wallop's Trust, 1 D. J. & S. 356; In re Tootall's Trust, L. R. 23 Ch. Div. 532.

3 Matter of Enston, 113 N. Y. 182; Danforth and Finch, JJ., dissented, and Ruger, C. J., not voting. And see opinion Danforth, J., p. 185.