Walker v. People

Mr. Justice Bailey

delivered the opinion of the Court.

This is a proceeding to review a judgment of the District Court affirming an order of the County Court, fixing the amount due the State as inheritance taxes in the estate of John U. Brookman, deceased. Brookman was a resident of the State of New York. Included in his -estate were certain unregistered bonds of a Colorado Corporation, the payment of which was secured by mortgage on certain real property situated in the States of Colorado, Wyoming and New Mexico. The decedent held these bonds in the state of his residence. Upon the theory that they were property within this state, because of the situs of some of the real property mortgaged to secure their payment, the Inheritance Tax Appraiser imposed a tax upon their transfer by inheritance. In substance the executors contend that the tax is not authorized by the statute, on the ground that the bonds are not property within the state within the meaning of the statute, and that to give the law a construction necessary to include and cover the bonds would be a violation of both the state and federal constitution.

The Inheritance Tax Law of 1913, Laws 1913, page 539, under which the Appraiser assessed the tax, is, sc far as applicable, as follows:

“A tax shall be, and is hereby, imposed upon the transfer of any property, real, personal or mixed, or of any interest therein or income therefrom, in trust or otherwise, to any person or persons, institution or corporation, except as hereinafter exempted, in the following cases: * * * When the transfer is by will or intestate laws of property within the State, and the decedent was a nonresident of the State at the time of his death.”

There is no dispute of the State’s right to impose an excise on the bonds passing by inheritance, if they are to be considered as property within the State. As was stated in Brown v. Elder, 32 Colo. 527, at page 532, 77 Fac. 853, 855:

“First, an inheritance tax is not one on property, but one on the succession; second, the right to take property bv devise or consent is a creature of the law, and not a natural right, and therefore the authority which confers it may impose conditions upon it. From these principles it is deduced that the State may tax privileges, discriminate between relatives, and grant exemptions, and is not precluded from this power by the provisions of the respective state constitutions requiring uniformity of taxation.”

Decedent was a resident and citizen of the State of New York. The bonds, drawn to bearer, were payable in New York and were kept by him at his domicile there. Prior to his death they manifestly were beyond the reach of the taxing power of this State, for any purpose. Upon his decease the right of succession was governed by, and subject to, the laws of New York, not of Colorado, and neither the bonds, as the measure of the tax, nor the right to take them by inheritance, which is the thing actually taxed, have any situs in this State. The rule is stated in 37 Cyc. 1562, as follows:

“Shares of stock in a domestic corporation are subject to the tax at the domicile of the corporation on their, transfer by will or under the intestate laws, although the decedent was a non-resident, and this is without regard to the place where the certificates may be kept. But a different rule applies to the bonds of a corporation. The bonds of a domestic corporation are not taxable at the domicile of the corporation if kept at the domicile of a non-resident owner, but are subject to the tax if physically present in the State, although belonging to a non-resident decedent.”

It is contended by the State that the fact that the payment of the bonds is secured upon property within this State brings them, as evidence of this debt, within its power for the purpose of taxation, on the ground, among others, that creditors are compelled to invoke local laws to enforce the obligation. Blackslone v. Miller, 188 U. S. 439, 47 L. Ed. 439, 23 Sup. Ct. 277, is cited and relied upon in support of this contention. The question in that case was whether a debt due an Illinois decedent by a co-partnership in New York, and money deposited by him in a New York trust company, were taxable under a clause in the New York Inheritance Tax statute, imposing a tax: “* * * upon the transfer of any property, real or personal * * * When the transfer is by will or intestate law, of the property within the State, and the decedent was a non-resident of the State at the time of his death.”

The court held in substance that this class of indebtedness was taxable in the state where the debtor resides, when the property is actually physically there. It is urged by the State that this case is decisive of the one at bar, and that it in effect overrules the authority relied upon by plaintiffs in error, which is primarily State Tax on Foreign Held Bonds, sub nom. Cleveland P. &. A. Co. v. Pennsylvania, 82 U. S. (15 Wall) 179, 21 L. Ed. 179. In which case a tax was levied upon bonds of a corporation doing business in Pennsylvania, when the bonds were kept at the domicile of the owner in another state. At page 187 the court said:

“Corporations may be taxed, like natural persons, upon their property and business. But debts owing by corporations, like debts owing by individuals, are not property of the debtors in any sense; they are obligations of the debtors, and only possess value in the hands of the creditors. With them they are property, and in their hands they may be taxed. To call debts property of the debtors is simply to misuse terms. All the property there can be, in the nature of things, in debts of corporations, belongs to the creditors, to whom they are payable, and follows their domicile, wherever that may be. Their debts can have no locality separate from the parties to whom they are due. This principle might be stated in many different ways, and supported by citations in numerous adjudications, but no number of authorities and no forms of expression could add anything to its obvious truth, which is recognized upon its simple statement.

“The bonds issued by the railroad company in this ease are undoubtedly property, but property in the hands of the holders, not property of the obligors. So far as they are held by non-residents of the State, they are property beyond the jurisdiction of the State.”

This principle, unless overruled by Blackstone v. Miller, supra, clearly precludes the taxation of the Brookman bonds as property within this State. That the court, in Blackston v. Miller, supra, had no intention to overturn its decision in State Tax on Foreign Held Bonds, supra, so far as it affected bonds, is clearly evident from the opinion therein, where, at page 445, the court says:

“There is no conflict between our views and the point decided in the case reported under the name of State Tax on Foreign Held Bonds, 15 Wall. 300, sub nom. Cleveland P. & A. Co. v. Pennsylvania, 21 L. Ed. 279. The taxation in that case was on the interest on bonds held out of the State. Bonds and negotiable instruments are more than merely evidences of debt. The debt is inseparable from the paper which declares and constitutes it, by a tradition which comesi down from more archaic conditions. Bacon v. Hooker, 177 Mass. 335, 337, 58 N. E. 1078, 83 Am. St. 279. Therefore, considering only the place of the property, it was held that bonds held outside of the State could not be reached. The decision has been cut down to its precise points by later cases. Savings & L. Soc. v. Multomah County, 169 U. S., 42 L. ed. 803, 805, 18 Sup. Ct. Rep. 392; New Orleans v. Stempl, 175 U. S. 309, 319, 320, 44 L. ed. 174, 180, 20 Sup. Ct. Rep. 110.”

The cases cited by defendant in error are all distinguishable by some vital and controlling fact from the case at bar. Thus, in Blackstone v. Miller, supra, ancillary administration was in progress in the courts of the taxing state, 112 N. W. 131, 11 L. R. A. (N. S.) 1134, 119 Am. St. 677. This is also true in In re Rogers Estate, 149 Mich. 305; Albany v Powell, 55 N. C. 51; State v. Dalrymple, 70 Md. 294, 17 Atl. 82, 3 L. R. A. 372, and in the Massachusetts cases.

It is settled law that it is the succession which is the subject of the tax, and not the thing inherited. In the case at bar here is no ancillary administration here. The decedent, the legatee, and the bonds themselves, now are, and have been at all times, beyond this jurisdiction. So far as the bonds in question be concerned, there is no property, or evidence of indebtedness belonging to the Brookman estate physically within this jurisdiction, nor is this State concerned in any manner with the process of succession. In substance it is urged by defendant in error that the State has authority under the statute to tax the right of non-resident legatees to inherit property outside of the State, under the foreign-probated will of a non-resident testator. The bonds being unregistered, pass upon delivery, just like money. They are manifestly transitory and fugitive, and this State is powerless to place its hand upon them, for the purpose of taxation, in the absence of direct, specific legislation to that effect. For taxing purposes the debt which the bonds represent is the property of the bond holder, and not of the debtor. The situs of the bonds is the domicile of the owner, and they are taxable there. This is the rule except when such property is not in the custody of the non-resident owner, but is physically present in the state proposing to levy the tax.

Cases in state courts denying the right to tax evidences of indebtedness secured by local real estate, but held abroad, are the following:

In re Preston’s Estate, 78 N. Y. Sup. 91, the syllabus reads as follows: .

“Bonds of a private individual secured by a mortgage on real estate in New York, both bonds and mortgage being kept in good faith outside of the State, are not subject to taxable transfer acts.”

The court, citing In re Bronson’s Estate, 150 N. Y. 1, said it was unable to distinguish this case from that “where it was held that bonds of a domestic corporation owned and held in a foreign State could not be reached by the taxable transfer acts,” citing, also, State Tax on Foreign Held Bonds, supra.

Gilbertson v. Olive, 129 Iowa 568, 105 N. W. 1002, was decided under a statute providing that “all property within the jurisdiction * * * and any interest therein, whether belonging to the inhabitants of this state or not, and whether tangible or intangible, which shall pass by will, or by the statutes of inheritance, of this or any other State, or by deed, grant, sale or gift, in possession or enjoyment after the death of the grantor or donor, to any person in trust, or otherwise * * * is subject to a collateral inheritance tax. Part of the property involved was notes and mortgages, owned by residents of Iowa and secured by property situated therein. The court admitting that “there is a conflict in the adjudicated cases as to whether such evidences of indebtedness are taxable at the domicile of the owner, or whether the actual situs of the property determines the liability to taxation,” says:

“The great weight of authority, however, supports the holding of our own cases that this species of personal property, which is in a sense intangible and incorporeal, is taxable at the domicile of the owner, and not elsewhere, unless the owner has himself given it a different situs.”

The court then quotes City of Davenport v. M. & M. R. R. Co., 12 Iowa 539, to the following effect:

“It is true that the situs of the property mortgaged is within the jurisdiction of the State, but the mortgage itself, being personal property, a chose in action, attaches to the person of the owner.”

The court also quotes with approval from Hunter v. Board of Supervisors, 33 Iowa, 376, 11 Am. Rep. 132, to the following effect:

“The debt due, of which the notes are the evidence, is property vested in the owner wherever he may reside. This property in the right — the chose in action — is as absolute a property therein, and he is as well entitled to it as he is to tangible property in possession; and this species of property, debts due, must in the nature of things, follow and be with the owner, except perhaps when he has conferred authority upon some one else as his agent to loan, manage, receive and collect the same for him * * * The right to the ‘money due’ being in the appellant, the property in the right must of necessity be in the place where he resides, irrespective of the situs of the evidence.”

In In re Fearing’s Will, 200 N. Y. 340, 93 N. E. 956, it is stated in the syllabus :

“Transfer Tax Law (laws 1892, c. 399), Sec. 1, provides that a tax shall be imposed on the transfer by will, or intestate law, of property within the State, where the decedent was a non-resident at the time of his death. Held, that bonds passing under the will of a non-resident pursuant to a power of appointment were not property within the State within such act, and subject to taxation because the bonds were secured by mortgages on lands located in New York.”

At page 958 of the opinion in 93 N. E., the court said:

“Whether the bonds were secured * * * by corporate property * * * or 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 personality of the owners.”

The contention of defendant in error prevail only upon the theory laid down in Blackstone v. Miller, supra, to the effect that, for inheritance tax purposes, a debt may be taxed at the domicile of the debtor; but this was declared where the property was physically in the taxing state, and ancillary administration was in progress in its courts, and can not be considered an authority for the imposition of the tax under consideration. In any event, bonds, such as are here involved, ai*e specifically excepted by that opinion from the operation of the special rule therein laid down.

It will be observed that in some of the cases the domicile of the owner has been held to furnish the test of jurisdiction for the purpose of taxation, while in others this test has yielded to the actual situs of the property within the territorial limits of the taxing authority, but in no case has the domicile of the debtor, or the location of the securities, been taken as situs for the purpose of taxation in the absence of some special circumstances which the court considered gave it an actual situs. No such circumstance exists here. Moreover, whether the test to be applied is the domicile of the owner, or the place where the securities are actually located, since both are in the State of New York, the conclusion must be that the bonds are exempt from taxation in Colorado.

The judgment of the trial court is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Decision en banc.

Mr. Chief Justice Hill and Mr. Justice Scott dissent.