In Matter of Gordon, 186 N. Y. 471; 79 N. E. 722, the court said: "If the contract in this case is subject to the imposition of a transfer tax, then any contract of insurance issued to a non-resident, passing to and held by his non-resident representatives or assigns, and being administered and enforceable in a foreign jurisdiction, whether in the state of Texas or California, or in some foreign country, would afford the basis of taxation in this state, provided only the policy was issued by a New York corporation and assess could be obtained by the tax collector to its proceeds. No distance of domicile of the assured and his transferees or beneficiaries, and no completeness of foreign jurisdiction over administration and enforcement, and no lack of anticipation of such a result upon the part of the assured, would be a bar to the attempted application of the taxing power. It requires no great imaginative processes to picture the limits and disapproval and friction to which this theory would lead if logically carried to its full length. "It was undoubtedly the intent of the legislature that the statute under consideration should be liberally construed to the end of taxing the transfer of all property which fairly and reasonably could be regarded as subject to the same, and this court has unequivocally placed itself upon record in favor of construing the statute in the light of such intent. But the proposition now propounded, if adopted, would lead far beyond any point which has thus far been reached, and we do not believe that it would be wise or practicable to adopt it." To the same effect are: Matter of Horn, 39 Misc. 133; 78 Supp. 979. Matter of Rhoades, 190 N. Y. 525; 83 N. E. 1130. Matter of Abbett, 29 Misc. 567; 61 Supp. 1067. A policy on the life of a resident payable to the estate is taxable. Matter of Knoedler, 140 N. Y. 377; 35 N. E. 601. But not if assigned to a beneficiary. Matter of Parsons, 117 App. Div. 321; 102 Supp. 168. d. SEAT IN THE STOCK EXCHANGE. This is universally held to be property. Nashua Bank v. Abbott, 181 Mass. 531; 63 N. E. 1085. People v. Feitner, 167 N. Y. 1; 60 N. E. 265. Page v. Edmunds, 187 U. S. 596; 23 S. Ct. R. 200. It is taxable as such in New York against a resident. Matter of Glendinning, 68 App. Div. 125; 74 Supp. 190. Matter of Curtis, 31 Misc. 83; 64 Supp. 574. And also when owned by a non-resident prior to 1911. Matter of Hellman, 174 N. Y. 254; 66 N. E. 809. e. INTEREST IN THE ESTATE OF ANOTHER. Where a non-resident died leaving a legacy to another non-resident who died the next day the interest of the deceased devisee in the estate of the testator had not been determined and therefore was not property within the state. Matter of Zefita, 167 N. Y. 280; 60 N. E. 508. But where a non-resident bequeathed the residuary to his son also a non-resident and the son died after the amount of the residuary estate had been ascertained, though still in the hands of the executors, it was held that the interest of the son was property within the state transferred at his death and taxable. Matter of Clinch, 180 N. Y. 300; 73 N. E. 35. The distinction thus made has not generally been followed. So in Pennsylvania, when a brother of the decedent, who was a resident of New York, died two weeks before his sister, who was a resident of Pennsylvania, it was held that the sister inherited at the moment of the brother's death, and that it was wholly immaterial that the net amount of his estate had not been ascertained. Milliken's Estate, 206 Pa. St. 149; 55 A. 853. f. PARTNERSHIP INTEREST. The interest of co-partners is in the surplus after payment of debts, and is therefore intangible, even if the co-partnership owns real estate. Darrow v. Calkins, 154 N. Y. 503; 49 N. E. 61. Preston v. Fitch, 137 N. Y. 41. Menagh v. Whitehall, 52 N. Y. 146. Secor v. Tradesmen's National Bank, 92 App. Div. 241. Although the question has not been litigated the New York state comptroller has given an opinion that, under this doctrine, real estate owned by a partnership though situated outside the state is to be included in the valuation of the assets of the firm in which a decedent had an interest. Matter of Dusenberry, 2 N. Y. State Dept. Rep. 501. The interest of a nonresident in a New York partnership is taxable under the present N. Y. statute, chapter 664, L. 1915. Matter of Du Bois, New York Law Journal, Feb. 9, 1917; 163 Supp. 668. The same rule prevails in Pennsylvania by judicial construction. In re Small, 151 Pa. St. 1; 25 A. 23. But where co-partners take title to real estate in their individual names, as tenants in common, it does not become partnership property in the absence of evidence of intent. Matter of Lowenfeld, New York Law Journal, June 27, 1916. But where real estate is purchased with partnership funds and the title is taken in the name of one of the partners a resulting trust arises in favor of the other partners in proportion to their interest in the partnership. People v. Sholem, 244 Ill. 502; 91 N. E. 704. Local assets of a partnership with its main office in Boston and branch office in New York are taxable in New York. Matter of Clark, New York Law Journal, Feb. 9, 1912. B. AS TO VALUE. Though the tax is on the transfer and not upon the property the value of the property transferred is used as a yard-stick whereby to measure the value of the transferred interest. As we have seen, the value must, unless the statute specifies otherwise, be at the date of death and no subsequent change can affect it. Hanberg v. Morgan, 263 Ill. 616; 105 N. E. 720. 1. Where the Value at Death Cannot be Ascertained. It is often impossible to ascertain the value at the date of death. A claim of the estate may be involved in litigation, in which case taxation must be suspended. Matter of Westurn, 152 N. Y. 93, 103; 46 N. E. 315. Matter of Skinner, 106 App. Div. 217; 94 Supp. 144. Or the claim may be an interest in the estate of another decedent which has not yet been settled. An interesting question recently arose under such suspension of taxation in the estate of Mary D. Daly, which consisted chiefly of her interest in the estate of her deceased husband, Augustine Daly, the playwright. The surrogate's opinion, reported in the New York Law Journal of July 28, 1916, is in part as follows: "An order was entered on a transfer tax appraiser's report on December 30, 1908, which, among other things, suspended from appraisal and taxation decedent's interest in the estate of Augustine Daly, her deceased husband. The grounds of such suspension were stated to be that the value of this interest was not then ascertainable. A supplemental report was subsequently filed from which it appears that said interest was valued at $82,530.48, and that the date of accrual was therein fixed as of June 30, 1914. From this report and the order entered thereon fixing tax the executor appeals. The principal question involved in the appeal is whether the value of the interest above referred to should be considered as of the date of decedent's death or at the time the last payment was made under the terms of which the said two estates settled their differences and which was the date designated by the appraiser to be the date of accrual. In view of the fact that at an earlier date it was impossible to fix the value of the decedent's interest in her husband's estate, we must then inquire, what was the date at which the value of this interest could be ascertained? Apparently the date when the parties by the agreement mentioned made the last payment. This payment represents the value of decedent's interest in her husband's estate at the time of her death, although at that time not ascertainable." 2. Real Estate. The assessed value for ordinary taxation is not controlling on the market value. McGhee v. State, 105 Ia. 9; 74 N. W. 695. But in practice a wide discrepancy between the value fixed by an expert appraiser and the assessed valuation equalized to the 100 per cent. basis would require explanation. When obtainable an actual bona fide sale of property in the vicinity prior to death is the best evidence. Matter of Arnold, 114 App. Div. 244; 99 Supp. 704. |