1. Jurisdiction. D.- CONFLICT OF LAWS. Adjudications as to residence or domicile though essential to the jurisdiction of one state are not binding on courts of another state and are there open to collateral attack. Matter of Horton, 217 N. Y. 363; 111 N. E. 1066. Tilt v. Kelsey, 207 U. S. 43; 28 S. Ct. Rep. 1. 2. Full Faith and Credit. When after publication for claims a final decree is entered it is a bar to a proceeding in another state for the collection of a transfer tax providing the court which entered such a decree had jurisdiction to probate the will. Tilt v. Kelsey, 207 U. S. 43; 28 S. Ct. Rep. 1. So it was held in Washington that when " a resident of the state of Maine died, leaving estate there and in this state, and his will was probated there, and all legacies to collateral heirs and strangers to the blood and all debts were, by order of the probate court in Maine paid out of the estate situated in that state, leaving the property in this state to be divided between his widow and son under the residuary clause in the will, the estate in the state of Washington is not chargeable with the increased inheritance tax upon legacies to collateral heirs and strangers to the blood at the rate of 3 and 6 per cent.; since comity requires that full faith and credit be given to the proceedings in the probate court in Maine, ordering those legacies to be paid out of the estate within its jurisdiction and under its control, and such order is conclusive on the courts of this state; and since the inheritance tax is to be deducted from the legacies and paid by the legatees, and the executor in this state has no opportunity to collect the same from the legatees chargeable therewith.' In re Clark's Estate, 37 Wash. 671; 80 Pac. 267. 3. Proof of Foreign Laws. These must be established like any other fact by proper evidence. Matter of Cummings, 142 App. Div. 377; 127 Supp. 109. A duly authenticated affidavit by an attorney of the foreign state is competent.. Matter of Vivianti, 206 N. Y. 656. (See Table of Cases.) Tilt v. Kelsey, 207 U. S. 43; 28 S. Ct. Rep. 1. 4. As to Sister States. The inheritance tax statutes cannot discriminate in favor of their own residents as against residents in another state. Johnson's Estate, 139 Cal. 532; 73 Pac. 424. In this case there were two appeals, one taken by resi-dent nieces and nephews and the other by non-resident nieces and nephews, citizens of sister states, from an order assessing inheritance tax against them, on the grounds that the Statutes of 1897, page 77, contained an amendment exempting "nieces or nephews when a resident of this State" and that the effect of this amendment is torelieve not only nieces and nephews, resident of this state, but also nieces and nephews resident of other states of the Union, and the Supreme Court so held. The Estate of Mahoney, 133 Cal. 180, 65 Pac. 389, was reversed, and the amendment exempting nieces and nephews resident of this state held to be constitutional and not in violation of section 2 of article IV of the Constitution of the United States, nor of section 1978 of the Revised Statutes of the United States; and that said section of the Constitution declaring that "the citizens of each state shall be entitled to all the privileges and immunities of the citizens of the several states " does not strike down or limit the right of a state to confer such immunities and privileges upon its own citizens; that the clause of the Constitution is protective merely and not destructive nor even restrictive. "It nowhere intimates that an immunity conferred upon citizens of a state, because not in terms conferred upon citizens of sister states, shall therefore be void." "It leaves to the state perfect freedom to grant such privileges to its citizens as it may see fit, but secures to the citizens of all other states, by virtue of the constitutional enactment itself, the same rights, privileges, and immunities." It is a canon of construction that an act of the legislature will yield to the constitution so far as necessary, but no further. The constitutional immunity goes only to citizens of sister states, and there is a clear distinction thus recognized between citizens of the states and citizens of the United States who are not citizens of any state, as well as citizens of alien states. By virtue of the constitution of the United States, the immunity which the legislature by the amendment of 1897 conferred upon citizens of this State is extended to citizens of sister states, but the immunity goes no further. Citizens of territories, of the District of Columbia, and of our new possessions, as well as aliens, are not exempted, and their property is thus liable for the tax." 5. As Against Aliens Protected by Treaties. Several of the states have undertaken to discriminate in their rates or exemptions against alien non-residents. Where the interests of aliens are protected by treaties such discriminations have been held void. Adams v. Akelund, 168 Ill. 632, 48 N. E. 454. Matter of Strobel, 39 Supp. 169; aff. 5 App. Div. 621. And a treaty containing a "most favored nation clause" affords this protection, thus practically nullifying such statutes, as practically all treaties so provide. Brown v. Daly, 172 Ia. 379; 154 N. W. 602. But a treaty negotiated subsequent to the statute cannot affect the state's right to its tax. Prevost v. Greneaux, 60 U. S. 1; 19 How. 1. Succession of Schaffer, 13 La. Ann. 113. The attempt of the Federal Statute to discriminate against alien non-residents in the matter of exemptions will soon bring the subject again before the courts. On the other hand, while aliens cannot be discriminated against in violation of a treaty they are no better off than citizens and must pay succession taxes at the same rate. Matter of Strobel, 39 Supp. 169; aff. 5 App. Div. 621. 6. Reciprocal Provisions. Minnesota in 1911 exempted non-resident transfers when the laws of the state of domicile "exempt or do not impose a tax upon transfers of personal property of residents of Minnesota having its situs in such state." A state which imposes such a tax upon the personal property of collaterals and strangers only does not come within the provision. This provision has since been repealed. Graff v. Probate Court, 128 Minn. 371; 150 N. W. 1094. Under " reciprocal "statute of Massachusetts property of a resident of New York in that state pays only so much tax as is in excess of the tax imposed in New York. Bliss v. Bliss, 221 Mass. 201; 109 N. E. 148. PART II-THE TRANSFER A. Transfers by Will. 1. Testamentary Provisions which may Affect the Tax. b. What He Can Do. 2. Transfers Pursuant to Agreements to Make a Will. a. Where the Agreement is Violated. b. Where the Agreement is Performed. 3. Compromise Agreements between Heirs and Devisees. 5. As Affected by Statute. B. Transfers by Intestate Law. 1. As to Real Estate. 2. As to Personal Property. 3. Advancements. 4. Résumé of the Intestate Laws of the Several States. C. Gifts. a. Rights of a Surviving Husband. b. Where there is no Husband, Widow, Children or Descendants. c. Where Both Parents are Dead, Leaving Issue. d. Where a Widow and Issue or Descendants Survive. e. If there is a Widow or Husband but no Children or Descendants. 1. Inter Vivos. a. Burden of Proof is on the Donee. b. There must be a Present Intent to Give. c. There must be Delivery of the Thing Given. d. Delivery to an Agent. (1) To Agent of Donor. (2) To Agent of Donee. e. Symbolical Delivery. f. Redelivery by Donee to Donor. g. Power of Revocation. h. Stock Transfer Stamps. 2. Gifts Causa Mortis. 3. Gifts in Contemplation of Death. d. Tax Accrues at Date of Gift. |