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On the other hand it has been held in Nebraska that money due on a land contract is a debt with its situs at the domicile of the owner.

Dodge County v. Burns, 131 N. W. 922.

So, where there was a contract to sell real estate and the deed was executed by the decedent but not delivered until the day after death and the property was located out of the state it was held that there was no conversion and the proceeds of the sale were not taxable at domicile. Matter of Baker, 67 Misc. 630; 124 Supp. 827.

Of a nature similar to land contracts are shares in an unincorporated real estate trust where real estate is in Massachusetts; held, taxable against a non-resident holder as property within the state.

The court said: "It is not necessary to analyze with greater nicety the precise character of the property interest of a shareholder under each of the trusts. It is true of all of them that their rights are equitable interests in tangible property within this Commonwealth. While the legal title is in the trustees, their ownership is fiduciary, and the certificate holders are the ultimate proprietors of the property, which is held and managed for their benefit, and which must be divided among them at the termination of the trust. Their rights constitute not choses in action but a substantial property right. In this respect the case is indistinguishable in principle from shareholders in a domestic corporation. Greves v. Shaw, 173 Mass. 205; 53 N. E. 372. The fact that the certificates themselves were not within the Commonwealth is an immaterial circumstance."

Peabody v. Treasurer, 215 Mass. 129; 102 N. E. 435.

d. LEASES.

Obviously a lease may be an asset or a liability, a debt or property. If it is a perpetual lease, reserving rent, it is held to be real property.

Matter of Vivianti, 138 App. Div. 281; 122 Supp. 954; 146 App. Div. 942; 131 Supp. 1148; aff. 206 N. Y. 656.

The leasehold interest was in Japan and the court said, in holding it not taxable as against a resident decedent in New York:

"It would seem clear, upon all the testimony, that the premises in question were held by decedent under a perpetual lease, reserving rent, and that under the law of Japan, as well as under our own, the interest of the decedent therein was real property and not personal," and the transfer thereof not taxable.

On the other hand a lease for twenty-one years from Columbia College of property in New York was held personal property.

Matter of Althause, 63 App. Div. 252; 71 Supp. 445; aff. 168
N. Y. 670; 61 N. E. 1127.

The fact that the lease is physically out of the state does not change its situs.

"The fact that the instrument of lease was located in New Jersey is immaterial, as it was merely evidence of the decedent's interest in the premises situate in this county. A lease is not an indebtedness existing in favor of either of the parties thereto, but evidence of a contract or agreement by which each of the parties became entitled to certain rights. Like a certificate of stock in a corporation, it has no legal situs apart from the property to which it refers. The decedent's interest in the leasehold premises therefore constituted property in this state (Matter of Whiting, 150 N. Y. 27; 44 N. E. 715; Matter Clinch, 180 N. Y. 300; 73 N. E. 35).”

Matter of Rosenbaum, N. Y. L. J., Aug. 7, 1914.

2. Tangibles.

Cattle in another state are held not taxable as against a resident decedent in Iowa since they do not follow the domicile of the owner, even though they have been sold and the proceeds brought into the state for distribution. This is not the general doctrine.

Weaver v. State, 110 Ia. 328; 81 N. W. 603.

The home port of a vessel engaged in interstate commerce is its situs for purposes of taxation.

Ayer & Lord Co. v. Kentucky, 202 U. S. 409; 26 S. Ct. Rep. 679.

And a vessel so located is " tangible."

People v. State Tax Commission, 174 App. Div. 320; 160 Supp. 854.

So a yacht of a nonresident if its home port is within the state is tangible.

Matter of Curry, N. Y. L. J., May 27, 1914.

Antique furniture of a nonresident is taxable when in New York.

Matter of Canfield, 96 Misc. 119; 159 Supp. 735.

The New York Statute, while it now taxes only the tangible personal property of non-residents, taxed the tangibles of its own residents in a foreign jurisdiction, prior to 1911, so when machinery in a factory in New Jersey was not so attached to the building that it could not be removed without injury to the property it was held personal property and taxable as part of the estate of a New York decedent.

Matter of Gumbinner, 92 Misc. 104; 155 Supp. 188.

3. Mortgages, Bonds and Commercial Paper.

As to the situs of mortgages for purposes of inheritance taxation there are three different theories. The mortgage may be held to have its situs at the domicile of the

owner, or where the land is situated, or where the bond and mortgage documents happen to be found. It is possible, under these conditions, that a mortgage held by a decedent's estate might pay taxes in three states.

a. SITUS AT DOMICILE OF OWNER.

The original view of the New York courts was that the situs of the mortgage debt was the domicile of the owner. The court said in Matter of Fearing, 200 N. Y. 340; 93 N. E. 956," whether the bonds are secured, as in the Bronson case, by, mortgages of corporate property, or, as in the present case, by mortgages of the property of individuals, they represent, equally, debts of their makers, which, as choses in action, under the general rule of law, are inseparable from the personalty of the owner. Under that rule, as it was said in the Foreign Held Bonds Case (15 Wall. 300-320), of the bonds there, they can have no locality separate from the parties to whom they are due,' and the legal situs of the indebtedness, which they represent, is fixed by the domicile of the creditor. The legal title of these bonds in question was transferred by force of the laws of Rhode Island. As their legal and actual situs was in a foreign state, upon no theory were they within the operation of our Transfer Tax Law."

This doctrine is emphasized in several of the other earlier New York cases.

Matter of Bronson, 150 N. Y. 1; 44 N. E. 707.

Matter of Gibbes, 84 App. Div. 510; 83 Supp. 53; aff. 176 N. Y. 565; 68 N. E. 1117.

This is the rule adopted by the courts in several other states.

Orcutt's Appeal, 97 Pa. St. 179.

Gilbertson v. Oliver, 129 Ia. 568; 105 N. W. 1002.

Estate of Fair, 128 Cal. 607; 61 Pac. 184.

Estate of McCahill, 171 Cal. 482; 153 Pac. 930.

But, prior to the repeal of the tax upon the intangible property of non-residents within the state, the New York courts reversed the former doctrine and held that the mortgage debt was taxable when the bonds or notes were kept within the state.

b.

Matter of Tiffany, 143 App. Div. 327; 128 Supp. 106; aff. 202 N. Y. 550, sustained sub. nom. Wheeler v. Sohmer, 233 U. S. 434.

WHERE THE LAND LIES.

In other states the situs of the mortgage debt is regarded as that of the land which secures it. The reasoning upon which this doctrine is founded is set forth by the Massachusetts court in Kinney v. Stevens, 207 Mass. 368; 93 N. E. 586 as follows:

"While, for general purposes, the interest of the mortgagee is treated as personal property, it has a local situs, and carries with it an ownership of the land until it is redeemed by the payment of the debt in performance of the condition. The debt, which is the obligation of the debtor to pay, and the land, which is the security for the payment of the debt, are individual parts of a single valuable property in the mortgagee, which may be made available in different ways. The debt belongs with the mortgage, and it must coexist to give the mortgage validity. For that purpose it has a situs within the jurisdiction of the state where the land lies. It was held in McCurdy v. McCurdy, 197 Mass. 248; 83 N. E. 881, that the tax upon the succession to real estate in this Commonwealth, which belonged to a decedent in another state and was subject to a mortgage, was to be assessed only upon the value of the property above the mortgage. This was upon the ground that what passed upon the death of the mortgagor was only the value of his interest, which was the value of the real estate less the amount of the debt that was a charge upon it. This was equivalent to holding that, upon the death of the mortgagee, his interest in the real

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