The share of a grandmother was held taxable in Pennsylvania 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 ascertained by rule of the civil and not of the canon law.1

But property devised to testator's daughter, in trust, for life, with power of appointment by will in the life-tenant, which the daughter by will devised to her brothers and sisters and their children, being lineal descendants of her father, is not liable.

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.*

9. Aliens, foreign legatees and non-residents.— This subject has already been considered as to the constitutional questions involved, and elsewhere with reference to questions of domicile and situs. Under the statutes 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

1 McDowell v. Addoms, 45 Pa. St. 430; and see rules relative to collateral and lineal consanguinity under these acts discussed per Woodward, C. J.

2 See Chapter VI, sec. 6.

3 Com. v. Williams, 13 Pa. St. 29; Com. v. Sharpless, 2 Chest. Pa. 246; Com. v. Schumacher, 9 L. Bar. Pa. 199; Hackett v. Com. 102 Pa. St. 505.

4 Matter of Farley, 15 N. Y. St. Rep. 727; contra, Cullen v. Atty.-Genl. L. R. 1 H. L. 890.

5 Chapter II, secs. 15, 16.

• Chapter IV.

succession open in the State after the passage of the law.1

But while the law of that State imposes the tax upon non-resident aliens, and alien heirs, and citizens residing abroad, non-resident heirs who are citizens of any other State of the United States are exempt.2 Under these statutes it has been held that the word "estate is synonymous with the word "suc

cessor.

10. What estates or interests taxable; legacies under $500, &c.—The rule seems to be general that the tax is 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 non-exempt persons, heirs, devisees or legatees* (the word "estate" in the act referring to the last named

1 Succession of Oyon, 6 R. (La.) 504; Succession of Peyroud, 9 Id. 357.

2 Louisiana v. Peydras, 9 A. (La.) 165; s. c. 18 Howard U. S. 192.

3 N. O. v. Stewart's Estate, 21 A. (La.) 180.

4 See Chapter VII, sec. 3; Matter of Howe, 112 N. Y. 103; affg. 48 Hun, 235, 245; overruling Matter of Chardavoyne, 5 Dem. 466; Matter of Cager, 111 N. Y. 443; Matter of Clark, 1 Con. Surr. Rep. 431; McVean v. Sheldon, 48 Hun, 136; overruling Matter of Miller, 5 Dem. 132. See Matter of Thompson, 14 N. Y. St. Rep. 387; Matter of McCready, 10 Id. 696; Matter of Smith, 5 Dem. 90; Matter of Robinson, Id. 92; Matter of Hopkins, 6 Id. 1; Matter of Howard, 5 Dem. 483; Matter of Jones, Id. 30; Com. v. Smith, 5 Pa. St. 144; Com. v. Smith, 20 Id. 104; Com. v. Kerchner, 24 W. N. C. 260. The words "being within the commonwealth," in the Penn. 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 Est. 16 Pa. St. 63; Carpenter v. Com. 17 How. U.

persons), unless the testator direct that the tax be paid not by the taxable interest, but out of his general estate, in which event the executor must pay the tax.1 Many of these statutes exempt small legacies to collaterals from taxation; generally those which amount in value to not more than $1,000.

Under the New York statute, which exempts all estates from the tax that may be valued at a less sum than $500, it has recently been held, contrary, it seems, to the general practice of the different Surrogates, that a legacy of that amount not by law pay

able until a year after decedent's death is not subject to the tax, as its "clear market value" at the time of death is less than $500.*

If this rule be correct, as to which there is much doubt, it follows that only such legacies of that amount which are payable immediately upon decedent's death are taxable under this provision of the

statute

In

Pennsylvania, an estate which may be valued

at less than $250 is exempt. Under this clause of the statute it is held, contrary, it seems, to the New York cases, that the word "estate" does not refer to the S. 461; State v. Dalrymple, 70 Md. 294; 17 Atl. 83; see Com's. App. (Bittinger's Est.), 129 Pa. St. 338.

1

See Chapter VII, sec. 3; also Thompson's Est. 5 W. N. C. 19;

Shippen

V.

Burd, 42 Pa. St. 461; Horter's Est. 1 Pears. 424;

Murphy's Est. 4 P. C. R. 336; Holbrook's Est. 3 Id. 263; see Com. v. Boyle, 2 Del. Co. Rep. (Pa.), 335.

2

3

Supra, p. 72, note 4.

Matter of Peck, 30 N. Y. St. Rep. 209; 9 N. Y. Supp. 465; citing Thorne v. Garner, 113 N. Y. 198; contra, Matter of Pond, N. Y. Daily Reg. May 25, 1889; Est. of Bird, N. Y. Law Jour.

interest of the legatee, but to the property 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 innumerable small legacies of less than $250, and thus defeat the tax.1

11. 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 con verted 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."

8

12. Legacies when exempt under Acts of Congress.-The Act of Congress imposing a tax upon legacies arising from personal property, does not apply to legacies arising 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 to personal property, the inference is that it was intended to exempt such as were payable from the proceeds of real estate. So where money is received by claimants under a deceased person's will, by vir

1 Com. v. Kerchner, 24 W. N. C. 200; King's Est. 11 Phila. 27; Com. v. Boyle, 2 Del. Co. Rep. 335. See Matter of Miller, 5 Dem. 132.

2 See Chapter II, sec. 5; also Matter of Wolfe, 19 N. Y. St. Rep. 263; Miller v. Peo. sub nom. Lorillard v. People, 6 Dem. 268; Estate of Dewey, N. Y. Law Jour. Oct. 21, 1889; Com's. App. (Bittinger's Est.), 129 Pa. St. 336.

3 July 1, 1862.

4U. S. v. Watts, 1 Bond, 581.

tue of a compromise contract between them and the executors, sanctioned by a court having jurisdiction, the money 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.1

1 Page v. Rieves, 1 Hughes, 297. But see Bruce v. Smith, 13 Int. Rev. Rec. 54; Ex parte Stilwell, 59 L. I. R. 539.