2. Not Taxable.

In Louisiana it is held that the succession is not as heir or under the intestate law and although the husband could defeat the wife's interest in his will as he did not do so the succession is not taxable.

The court said: "It is true that the right of usufruct which is vested in the surviving spouse is defeasible at the will of the deceased; but it is nevertheless a right confirmed by the law which enters into and forms part of the marriage contract and of which the survivor can be deprived by no one save the deceased spouse."

Succession of Marsal, 118 La. 212; 42 So. 778.

In Nevada and Idaho community interests are neither defeasible nor is the succession taxable.

William's Estate, (Nevada) 161 Pac. 741.
Kohny v. Dunbar, (Idaho) 121 Pac. 544.

3. Gains Acquired in a Foreign Country Exempt.

Still another view of the widow's civil law right to "Gananciales" or joint gains of the marriage is found under the laws of Cuba as applied by the courts of New York.

The Cuban courts held that the husband could not defeat his wife's right to joint gains by will and at her suit awarded her one-half of his property. The husband had become a citizen of the United States though neither he nor his wife actually resided here. By his will, drawn in English and probated in New York, he recited that he was a resident of New York and attempted to defeat his wife's right under the Cuban law. The New York courts followed the Cuban decision and allowed a deduction of one-half from all the husband's property within the state apparently on the ground that all the

property had been acquired in Cuba during the marriage and was merely sent to this country for investment.

Matter of Tirso Mesa y Hernandez, 172 App. Div. 467; 159 Supp. 59; aff. 219 N. Y. 24.

4. Gains Acquired in this Country Taxable.

Still another result was reached where a couple, citizens of France, emigrated to this country in 1885 and lived here until the husband's death in 1907 but never became citizens. All their property was acquired in this country.

The court said: "As to whether the community interest of a wife in the property of her husband under the French law is such as to constitute her the present and continuing owner during their married life of an undivided one-half interest in his personal property acquired during his residence in France we do not now deem it necessary to determine; for, as we understand, all of the decedent's property, both real and personal, of which he died seized or possessed, was acquired after the removal of himself and wife to this State. While it must be conceded that some conflict exists in the decisions of courts in foreign jurisdictions, we have no hesitancy in reaching the conclusion that as to the property acquired by the decedent here during his residence with his wife in this State, it is controlled by our laws and upon his death it is transferred within the meaning of our tax laws."

Matter of Majot, 199 N. Y. 29; 92 N. E. 402.

On this subject there is obviously confusion in the law which must be clarified by further legislation and litigation.

PART III-THE PARTIES

A. The Decedent.

1. Residence and Domicile Synonymous.
2. Rules as to Domicile.

3. Application of the Rules.

a. Factum Without Animus.

b. Animus Without Factum.

c. Animus With Factum.

d. As to a Married Woman.

e. As to a Widow.

f. As to an Army Officer.

g. The Burden of Proof.

h. Construction as Affected by Statute.

B. The Beneficiaries- Generally.

1. As to Domicile or Residence.

2. Relationship to Decedent.
a. Adopted Children.

b. Other Relationships.

3. Personal Exemptions.
4. Exemptions to Charities, etc.

a. Charter Powers the Test.

b. Purposes Must be Brought Within the Language of the

Statute.

c. Bequests Held Exempt.

d. Bequests Held Taxable.

C. Heirs and Legatees.

1. Heirs of Real Estate.

a. Lien of the Tax.

b. Partition.

c. Equitable Conversion.

d. Sale to Pay the Tax.

e. When Charged With a Legacy.
f. As to Aliens.

2. Legatees of Personal Property.

a. Renunciation and Assignment.

b. Legacy Impressed With a Trust.

c. Lapsed Legacies.

3. While the Legacy is in Custodia Legis.
4. From What Fund Payable.

D. Life Estates and Remainders.

1. Examples and Illustrations.

2. Life Estates.

a. Fund from Which the Tax is Payable.

b. Charged With an Annuity.

c. Power to Invade Principal.

(1) Suspending Taxation of Remainder.

(2) When Discretion is in Trustee.

(3) When the Discretion is in the Life Tenant.

d. With Power of Appointment.

e. Tax Assessed on Theoretical, Not Actual Value.

3. Remainders.

a. The Law in Force at Death of Testator Governs.

b. Vested Remainders Not Taxable When Testator Died Before

the Statute.

c. Taxation Postponed Until Remainderman Gets Possession.

d. Presently Taxable.

e. When Beneficiary is Uncertain.

f. Highest Possible Rate.

g. Maximum and Minimum Rate.

h. Where Amount of Remainder is Uncertain.

i. Under Powers of Appointment.

j. Taxation of Full Undiminished Value.

E. Computations.

1. The Basis of Calculation.

a. Mortality Tables and Interest Rate.

b. Compound Interest Rule.

c. Present Worth Rule.

d. The Law of Discount.

e. Law of the Chance of Death.

f. Rule of the Chance of Death, as Affecting Present Worth.
g. Rule for Calculating Present Value of Life Estates.

2. Tables for Computing the Present Worth of Annuities.
a. Actuaries Combined Table at 4%.
b. Actuaries Combined Table at 5%.
c. American Experience Table at 4%.
d. American Experience Table at 5%.
e. Carlisle Table at 5%.

f. Carlisle Table at 6%.

g. American Experience Table of Mortality.

3. How to Use the Tables.

a. The Necessary Factors.

b. Ascertaining the Value.

4. Application to the Problems of Inheritance Taxation.

PART III-THE PARTIES

A.— THE DECEDENT.

As far as inheritance tax laws are concerned with the decedent, apart from the property he left behind and the personal representatives who administer it, the question of his former residence is chiefly important. The tax is imposed as to residents upon all personal property whereever situated, while as to real estate only upon that within the state. Real estate therefor never pays but one state inheritance tax. The theory as to the personality is that "movables follow the person" and being intangible, have the situs of their owner. This theory though frequently repeated in sonorous Latin: "Mobilia Personam Sequuntur," in solemn adjudications, involves an inherent absurdity. The person in question being dead, his tangible assets must have" sequunted "to that "bourne whence no traveller returns." They may be stored where the “worm dieth not and the fire is not quenched " or they may have been wafted up the golden stairs and through the pearly gates; but in either case they would be beyond the reach of the tax collector.

The truth is that the entire personal estate is taxed at the last domicile because it is there that the entire personal estate is administered and is within the power of the court.

This view is not without authority to support it. The maxim, declared the Illinois Court "is the outgrowth of conditions that have long ceased to exist."

Davis v. Upson, 230 Ill. 327; 82 N. E. 824.

"It is a fiction due to historic conditions" declared Justice Holmes.

Blackstone v. Miller, 188 U. S. 189; 23 S. Ct. R. 277.