In re the Estate of Brown

On December 11, 1931, Katherine H. Brown died within the State of New York, leaving a last will and testament dated and executed December 1,1931. She left real and personal property within the State of Colorado aggregating $362,447.03, which was administered in the county of Denver. Having property, real and personal, within the State of New York, her will was also probated in New York county. Upon proceedings to establish the inheritance tax due to the State of New York, the Inheritance Tax Appraiser for New York county included an item of $265,767.03, which represented a part of her estate administered within and taxed by the State of Colorado, and recommended a transfer tax thereon under article 10-C of the Tax Law (Cons. Laws, ch. 60) of the State of New York. The tax on this item paid to the State of Colorado was $15,653.82. Upon the report of the Appraiser, the Surrogate of New York county made a pro forma order imposing a transfer tax upon the identical property of $13,967.79.

The deceased had been a resident of and domiciled within the State of Colorado for many years. On December 30, 1924, while the deceased was a resident of Denver and domiciled within the State of Colorado she executed and delivered to the Denver National Bank, of Denver, Colorado, as trustee, a trust indenture wherein it was provided that from the income of the securities and property then deposited with the bank and constituting the res of the trust the trustee should pay to her daughter Marion K. Brown Elliott, $1,000 on the first day of each and every month during the term of her natural life, provided that in the event the income therefrom should not be sufficient to pay such monthly installment, the

The trust res listed in the deed of trust, legal title to which was transferred by the settlor to the trustee by the express terms of the trust instrument, consisted of Federal and Colorado State, municipal, school district, industrial and public service bonds aggregating in value $243,000. The trustee was given the power of substitution of property with the consent of the settlor. The trustee duly accepted the trust, entered upon its administration, and has at all times continued to administer it, both before and after the settlor’s death. There was no revocation of the trust or change of beneficiary or trustee or diversion of the income from the use and benefit of the daughter during the lifetime of the settlor

In an action duly commenced and prosecuted in the courts of Colorado after the death of the settlor to establish the status of the trust and trustee and terminated before proceedings were instituted in New York county before the Inheritance Tax Appraiser, it was found and adjudged that the trust agreement was not revoked by Mrs. Brown in her lifetime, that a valid trust existed and that the executors and trustees, devisees and legatees under her last will and testament had no interest in either 'the corpus or income of the trust by virtue of the terms of the will except in the event that distribution of the corpus of the trust should be required by the executors because of lack of beneficiaries to whom it could be distributed by the trustee under the terms of the trust indenture.

It is asserted by respondent and has been found by the Surrogate and affirmed by the Appellate Division that Mrs. Brown changed her residence from the State of Colorado to the State of New York and was domiciled within the latter State at the time of her death. This is not contested.

Assuming that domicile in New York State was established, the trust estate is still not taxable within the State of New York, because the trust estate had a fixed situs within the State of Colorado. It will again be noted that the trust was created by a resident of the State of Colorado while domiciled therein; that the trust indenture with the corpus of the trust was deposited with the Colorado trustee, whose domicile and residence were in Denver, Colorado; that the trust estate has remained and been administered in Denver, Colorado, since its creation in 1924; that the intent of the settlor was that the trust res should be and remain in the State of Colorado

It has been settled by the Supreme Court that real property, as between the States, may be taxed only by the jurisdiction where it is located. (First Nat. Bank v. Maine, 284 U. S. 312 ; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194 .) It has also been definitely settled that the right of succession to the ownership of tangible personal property arising through death can be taxed only at its permanent situs. (Frick v. Pennsylvania, 268 U. S. 473 ; Matter of Swift, 137 N. Y. 77 .) The location of both classes of property at the time the right to impose the tax arises is held to be the determining factor. These decisions rest upon the proposition that the property, the ownership or devolution of which is the subject of tax, must be within the jurisdiction of the taxing power. Predicated upon similar facts as to location, there seems to be no reason or logic for arbitrarily applying the ancient maxim mobilia sequuntur personam to the devolution of intangibles. That maxim is nothing more than a legal fiction properly applied to prevent injustice and resorted to only when justice and necessity require (Union Refrigerator Transit Co. v. Kentucky, supra), because, as pointed out in that case (p. 205), intangible property “ is held secretly; that there is no method by which its existence or ownership can be ascertained in the state of its situs. * * * So,” says the court, “ if the owner be discovered, there is no way by which he can be reached by process in a State other than

The principle that situs of intangible personalty follows domicile, frequently arbitrarily and strictly applied, has given way to the logical and rational exception that where “ the fact is clear that the intangible property has a situs elsewhere,” the fiction will not be followed. (New Orleans v. Stempel, 175 U. S. 309 ; Bristol v. Washington County, 177 U. S. 133 ; State Board of Assessors v. Comptoir National d’Escompte, 191 U. S. 388 ; Metropolitan Life Ins. Co. v. City of New Orleans, 205 U. S. 395 ; Liverpool & London & Globe Ins. Co. v. Orleans Assessors, 221 U. S. 346 ; Safe Deposit & Trust Co. v. Virginia, 280 U. S. 83 ; Matter of Swift, supra; DeGanay v. Lederer, 250 U. S. 376 ; Wheeling Steel Corp. v. Fox, 298 U. S. 193 ; People ex rel. Whitney v. Graves, 299 U. S. 366 ; 57 Sup. Ct. Rep. 237 . Cf. Hutchison v. Ross, 262 N. Y. 381 .)

Respecting jurisdiction over the thing taxed, there can be no distinction between general property and inheritance taxes. We cannot follow the fiction, as respondent desires, that the inheritance tax is not imposed on the trust property. Theoretically, that may be so. Practically, it is not so. It is, of course, the right to succession that gives the opportunity to tax. But the practical consideration remains that it is the value of the property to which title or interest passes that lays the basis for the tax. Fiction and fancy theories have been

In the Swift Case (supra) this court said: “ When succession to the ownership of property is by the permission of the state, then the permission can relate only to property over which the state has dominion and as to which it grants the privilege or permission. * * * Neither the doctrine of equitable conversion of lands, nor any fiction of situs of movables can have any bearing upon the question under advisement. The question of the jurisdiction of the state to tax is one of fact and cannot turn upon theories or fictions; which, as it has been observed, have no place in a well adjusted system of taxation. We can arrive at no other conclusion, in my opinion, than that the tax provided for in this law [referring to Collateral Inheritance Tax Act, Laws of 1885, ch. 483] is only enforceable as to property which, at the time of its owner’s death, was within the territorial limits of this state ” (p. 86.)

The Wheeling Steel Corporation Case (supra) had to do with an ad valorem property tax on net income, and the court refers to the general rule of necessity for the application of the maxim móbilia sequuntur personam and calls attention to the principle announced in Farmers Loan & Trust Co. v. Minnesota ( 280 U. S. 204 , 211, 212), that as to intangibles no sufficient reason exists for saying that they are not entitled to enjoy an immunity against taxation at more than one place similar to that accorded to tangibles. Such principle has had progressive application.

In Hutchison v. Ross ( 262 N. Y. 381 ) this court said: “ The maxim ‘ móbilia sequuntur personam ’ cannot always be carried to its logical conclusion. Practical considerations often stand in the way. The physical

In the Whitney Case (supra), the latest pronouncement of the Supreme Court on the subject, the foregoing exception to the rule of necessity is recognized and applied. No case has been called to our attention in any jurisdiction which has not followed the law, where the facts warranted, whether the tax involved is a general property tax or an inheritance tax, as laid down in the case of Safe Deposit & Trust Co. v. Virginia (supra), where it is said: “ The general rule must yield to established fact of legal ownership, actual presence and control elsewhere, and ought not to be applied if so to do would result in inescapable and patent injustice, whether through double taxation or otherwise ” (p. 92).

'The decision in the case of Guaranty Trust Co. v. Blodgett ( 287 U. S. 509 ), upon which respondent so heavily leans, has no bearing upon the question here involved. In that case the settlor retained the income of the trust during life, while here the income was transferred to the beneficiary on the date of the formation of the trust. On the facts in the Blodgett case it was held merely that a statute imposing a tax upon the succession to the enjoyment of property was constitutional. The cases of Bullen v. Wisconsin ( 240 U. S. 625 ) and Blodgett v. Silberman ( 277 U. S. 1 ) are clearly distinguishable from the facts in the case at bar. In the former case, in the deed of trust the donor retained the income for life with power of appointment, and provided that no portion of the principal or income be paid over to any person before the donor’s death unless by his direction, and in the latter no determination was made as to whether the property had a taxable situs in New York State, Connecticut being the State of residence of the deceased. Both cases were substantially held in Safe Deposit & Trust Co. v. Virginia

It has also been authoritatively held that where the legal title to the res is vested in the trustee, jurisdiction to tax is at the domicile of the trustee where the trust is to be administered. (2 Cooley on The Law of Taxation [4th ed.], § 469; 26 R. C. L., Taxation, § 259; Guthrie v. Pittsburgh, C. & St L. Ry. Co., 158 Penn. St. 433 ; Thorne v. State, 145 Minn. 412 ; Baldwin v. Shine, 84 Ky. 502 ; Safe Deposit & Trust Co. v. Virginia, supra.)

Section 249-r of article 10-C of the New York State Tax Law, in force at the time of the settlor’s death, provided that “ the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated (except real property situated and tangible personal property having an actual situs outside this State): 1. To the extent of the interest therein of the decedent at the time of his death. * * * 3. To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, including a transfer -under which the transferror has retained for his life or any period not ending before his death * * * (b) the right * * * to designate the persons who shall possess or enjoy the property or the income therefrom * * *. 4. To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death.” It is

The orders should be reversed and the matter remitted to the Surrogate’s Court to proceed in the matter of the inheritance tax proceedings in accordance with this opinion, with costs to the appellant in all courts. (See 274 N. Y. 634 .)

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur.

Ordered accordingly.