just enacted another direct inheritance tax under the same constitution while Ohio contents herself with a collateral inheritance tax.

State v. Switzler, 143 Mo. 287; 45 S. W. 245.

State v. Ferris, 53 Ohio St. 314; 41 N. E. 579.

4. Practical Applications of the Rule.

a. NOT A DIRECT TAX TO BE APPORTIONED AMONG THE STATES.

The results of the doctrine that inheritance taxes are not imposed upon property but upon privilege are far reaching, as a few of its practical applications will illustrate.

The Federal inheritance tax of 1898 was construed as an excise or impost and not a direct tax and was not required to be apportioned among the states in proportion to their population.

Knowlton v. Moore, 178 U. S. 41; 20 S. Ct. Rep. 747.

The court said:

"It is apparent that if imposts, duties and excises are controlled by controlled by the rule of intrinsic uniformity the methods usually employed at the time of the adopting of the constitution in all countries in the levy of such taxes would have to be abandoned." And again at page 109, Taxes imposed with reference to the ability of the person upon whom the burden is placed to bear the same have been levied from the foundation of the government."

b. PROPERTY OTHERWISE EXEMPT MUST BE INCLUDED AND VALUED.

This is so as to United States government bonds.

Matter of Sherman, 153 N. Y. 1; 46 N. E. 1032.

People ex rel. U. S. A. P. P. Co. v. Knight, 174 N. Y. 475; 67 N. E. 65. Plummer v. Coler, 178 U. S. 115; 20 S. Ct. Rep. 829.

Wallace v. Myers, 38 Fed. 184.

Also as to a bequest to the United States government. Matter of Cullom, 76 Hun, 610; 27 Supp. 1105; affd., 145 N. Y. 593; 40 N. E. 163.

Matter of Merriam, 141 N. Y. 479; 36 N. E. 505; affd., 163 U. S. 625; 16 S. Ct. Rep. 1073.

All property exempt by general statutes from taxation is none the less subject to inheritance taxes on its transfer. McKennan's Estate, 25 S. Dak. 369; 126 N. W. 611. Matter of Kucielski, 144 App. Div. 100; 128 Supp. 768.

Thus where the state constitution limited the valuation of mining claims to the price paid therefor to the United States government they must none the less be inventoried at their full value for the purposes of taxing their transfer by inheritance.

The rule often affects the construction of contracts. For example, provisions in a ninety-nine year lease whereby the lessee is to pay "taxes, charges and assessments," do not require him to pay the inheritance tax imposed by reason of the death of the lessor because the tax is on the transfer and not on the property.

North Trust Co. v. Buck, 263 Ill. 222; 104 N. E. 1114.

d. PERSONALTY OF RESIDENT TAXED, THOUGH IN FOREIGN JURISDICTION.

Intangible assets of a resident decedent, though located in a foreign jurisdiction, must be included in the valuation of his estate, even though they have been distributed elsewhere.

Bullen v. Wisconsin, 240 U. S. 625; 36 S. Ct. Rep. 473.

A well-considered case in Massachusetts thus explains the rule:

"But whatever the form of the tax, the succession takes place and is governed by the law of the domicile; and, if

the actual situs is in a foreign country, the courts of that country cannot annul the succession established by the law of the domicile. Dammert v. Osborn, 141 N. Y. 564; 35 N. E. 1088. In further illustration of the extent to which the law of the domicile operates, it is to be noted that the domicile is regarded as the place of principal administration, and any other administration is ancillary to that granted there. Payment by a foreign debtor to the domiciliary administrator will be a bar to a suit brought by an ancillary administrator subsequently appointed. Wilkins v. Ellett and Stevens v. Gaylord, ubi supra; Hutchins v. State Bank, 12 Met. 421; Martin v. Gage, 147 Mass. 204, 17 N. E. 310. And the domiciliary administrator has sufficient standing in the courts of another state to appeal from a decree appointing an ancillary administrator. Smith v. Sherman, 4 Cush. 408. Moreover, it is to be observed, if that is material, that there has been no administration in New York, that the executor was appointed here, and has taken possession of the property by virtue of such appointment and must distribute it and account for it according to the decrees of the courts of this commonwealth. To say, therefore, that the succession has taken place by virtue of the law of New York would be no less a fiction than the petitioners insist that the maxim mobilia sequuntur personam is when applied to matters of taxation."

Frothingham v. Shaw, 175 Mass. 59; 55 N. E. 623.

In sustaining the right to tax personal property of a resident though out of the state the Connecticut court reasons thus:

"The same principle of universal jurisdiction of a state to determine the succession to and distribution of personal property situate within other states recognizes the power and duty of such states to provide local administrations in respect to such property in aid of the administration of the domicile. And our succession tax is computed with

reference to the value of the whole beneficial succession which passes by force of our law and payment of the tax thus computed is required from the principal administrator although some portion may be actually received by a beneficiary at the hands of an ancillary administrator." Hopkins' Appeal, 77 Conn. 644, 653; 60 A. 657.

So, it is held in California, that personal property of a resident decedent dying testate or intestate, located outside of the state, and which is never brought into the state for purposes of administration, is subject to an inheritance tax in that state under the application of the familiar maxim mobilia personam sequuntur, for by this rule the right of succession to such property is governed by the law of the domicile and not by the law of the locality of the property. This rule is subject to the limitation that there be no rule to the contrary in the state where the personal property is actually located. But there is no rule to the contrary in Massachusetts. The fact that the state in which the personal property is distributed on ancillary administration also imposes an inheritance tax does not violate any principle of constitutional law against double taxation.

Matter of Hodges, 50 Cal. Dec. 15.

"The fact that the petitioner was able to obtain a transfer of a large part of the stock before the will was proved in this commonwealth does not affect his duty under the statute to pay the tax."

Greves v. Shaw, 173 Mass. 205; 53 N. E. 72.

On the other hand the mere fact that an executor of a foreign decedent resides within the state does not make him subject to its laws in his capacity as executor or render the property over which the court of another state has given him jurisdiction liable to taxation in the state where he resides.

Commonwealth v. Peebles, 134 Ky. 121; 119 S. W. 774.

The court said:

"One may occupy the two relations, of individual and executor; and, as individual, he may be subject to the laws of one state, and in his official capacity, he may be subject to the laws of another state, and he may, as executor, have the legal ownership of property over which the courts of the state in which he resides have no jurisdiction." the fact that an executor of an Ohio decedent who qualified in Ohio was domiciled in Kentucky did not render the assets of the Ohio decedent in the hands of the Kentucky executor liable to the tax in Kentucky.

So

e. INTANGIBLES OF NON-RESIDENT WITHIN THE STATE TAX

ABLE.

On the same theory it is reasoned that a state may tax the intangible property of a non-resident when within its jurisdiction.

"The tax is on the transmission of the property being in the state and no reason has been assigned nor can be suggested why the broad language of the statute and the evident design of the legislature should be so narrowed and restricted as to exempt from this tax the property of a non-resident actually here notwithstanding that the same property may for other purposes be treated as constructively elsewhere."

State v. Dalrymple, 70 Md. 294; 17 A. 82.

The right to succeed to property of a non-resident having its situs in New Jersey is taxable there.

Carr v. Edwards, 84 N. J. L. 667; 87 A. 132.

f. DOUBLE TAXATION.

This is the logical result although the courts declare that it is to be avoided if it is within the power of reason to do so.

Matter of James, 144 N. Y. 6, 11; 38 N. E. 961.

Matter of Cooley, 186 N. Y. 220, 227; 78 N. E. 939.

State v. Davis, 88 Kan. 849; 129 Pac. 1197.