State,' 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. And where the will of a decedent directs that real property, situated abroad, shall be converted into personalty, it may then be taxed by the laws of such decedent's domicile, as the tax is in reality considered as being imposed upon the proceeds passing under the will.3

And in England, as regards a British subject, the succession duty has even attached to foreign real estate used in a copartnership as an asset, a member of which firm was a domiciled Englishman.*

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."

5

The court said: "We must consider the case as if this Minnesota land had been all the estate the testator had, and as if it has been sold under the power

1 Com's. App. (Bittinger's Est.), 129 Pa. St. 338; 18 Atl. 132; S. C. 24 W. N. C. 273; and cases cited Chapter II, sec. 5. But see Est. of Dewey, supra.

486.

2 Com's. App. (Bittinger's Est.), supra.

3 Miller v. Com. 111 Pa. St. 321; Matter of Howard, 5 Dem.

Forbes v. Steven, L. R. 10 Eq. 178.

5 Drayton's App. 61 Pa. St. 172; Com. v. Coleman, 52 Id. 468; Hood's Est. 9 Harris, 106.

• Drayton's App. supra

and the proceeds 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 ear mark to distinguish them from other money of the testator. Hood's estate1 shows clearly that if the property is not liable to tax at the death of the testator, wherever 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.

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.3

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 non-resident estates.1

But under the English law the estates of English subjects dying abroad where they intended making their domicile are liable to the legacy tax unless

Supra.

2 As to what constitutes such change, see Hood's Estate, 9 Harris, 106, and post, p. 83.

4

Matter of Hughes, N. Y. Daily Reg. July 27, 1889.

U. S. v. Morris, 27 Fed. Rep. 341; U. S. v. Hunnewell, 13 Id. 617, and note, p. 618; San Francisco v. Mackey, 22 Fed. Rep.

there is evidence also showing that they had actually obtained a foreign domicile at the time of death.1

And notwithstanding such change of domicile is effected, in such event certain estates may be, nevertheless, liable to succession duty.2

tees.

$4. Non-resident decedents, their heirs and lega

3

(a) The English rule, mobilia sequuntur personam. We have already seen that two statutes in England regulate the duty or tax upon gifts, legacies and successions. 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 non-resident and alien decedents is concerned, and notwithstanding it is conceded in cases involving such liability that Parliament has the undoubted power to impose these taxes upon the estates of such foreign decedents, yet by force of a construction placed upon these statutes under the fiction of law, the intention on the part of the legislature to

1 Udney v. Udney, 1 Sco. App. 1869, 441; Atty.-Gen. v. Dunn, 6 M. & W. 526; Atty.-Gen. v. Napier, 6 Exch. 217; Hamilton v. Dallas, L. R. 1 Ch Div. 257; Atty.-Gen. v. Wahlstatt, 3 H. & C. 374; In re Tootall's Trust, L. R. 23 Chanc. Div. 532; In re Capdevielle, 2 H. & C. 985.

2

Atty.-Gen. v. Wahlstatt, and In re Capdevielle, supra.

3 Chapter I.

• Wallace v. Atty.-Gen. L. R. 1 Chanc. App. 1, per Lord Chancellor Cranworth; In re Badart, L. R. 10 Eq. 288.

tax such estates under the legacy act has been denied by all the judges in the House of Lords.

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 trustees, subject to local courts, have been taxed, notwithstanding all the parties were aliens.2

The result of a construction which thus exempted foreign estates in England from the tax under the legacy act, arising from a strict adherence to the maxim mobilia sequuntur 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 statutes, and, as we shall hereafter see, has provoked judicial criticism both in that country, and in America, where in many instances these cases have been substantially rejected as authorities."

Under the legacy act, it was originally held, that legacies left by a person domiciled in a foreign coun

1 Thompson v. Advocate-Gen. 12 C. & F. 1; overruling Atty.Gen. v. Cockerill, 1 Price, 165; Atty.-Gen. v. Beetson, 7 Price, 560; and see these cases criticised in St. v. Dalrymple, 70 Md. 294; S. C. 17 Atl. Rep. 82; Alvaney v. Powell, 2 Jones' Eq. 51; Matter of Lawr. G. Clark, 9 N. Y. Supp. 444.

2 In re Lovelace, 4 DeG. & J. 340; Re Wallop's Trust, 1 D. J. & S. 656.

3 Lyall v. Lyall, 1872, L. R. 15 Eq. 1; criticising Wallace v. Atty.-Gen. supra.

St. v. Dalrymple, 70 Md. 294; S. c. 17 Atl. 82; Alvaney v. Powell, 2 Jones' Eq. 51; Matter of Lawrence G. Clark, 9 N. Y. Supp. 444; Matter of Romaine, N. Y. Law Jour. March 19, 1890; Matter of Vinot, 7 N. Y. Supp. 517; see Matter of Enston. 113 N. Y. 183.

try, 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.1

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 purpose, for the court held that it was not liable upon the grounds stated by Lord Cottinham that the act referred merely to persons and wills and personal estates within the limits of the kingdom. None of these cases made the distinction between domicile, residence or situs until 1830, when1 the doctrine was first broached that the true criterion whether the parties were liable to legacy duty depended upon the fact whether the testator at the time of his death was domiciled in England, and the maxim that the personal property followed the person of the owner was adopted."

3

Finally, in 1845, the House of Lords declared, applying this maxim in its full force, that an English

1 Atty.-Gen. v. Cockerill, 1 Price, 165; Atty.-Gen. v. Beetson, 7 Id. 819; see Alexander's Est. 3 P. L. J. (Clark), 87; Matter of Romaine, supra. But probate duty it was held would not have been payable. Atty.-Gen. v. Hope, 1830, 1 Cromp. M. & R. 520; Atty. Gen. v. Napier, 1851, 6 Exch. 217; Forbes v. Steven, L. R. 10 Eq. 186.

2 Arnold v. Arnold, 2 Myl. & Cr. 270; Atty.-Gen. v. Forbes, 2 C. & F. 48; s. c. Atty. Gen. v. Jackson, 8 Bli. 15; but see Atty.Gen. v. Campbell, 1872, L. R. 5 H. L. 524.

3 Atty.-Gen. v. Napier, 6 Exch. 217.

* In re Ewin, 1 C. & J. 151, following Bruce v. Bruce, 2 Bos. & P. 229; see, also, In re Bruce, 2 C. & J. 436.

5 Atty.-General v. Napier, supra.