Congress is bound to express its intention to tax in clear and
unambiguous language, and a liberal construction should be given to
words of exception confining the operation of the duty.
The war tax law of 1898 imposing a tax upon legacies or
distributive shares arising from personal property passing "from
any person possessed of such property, either by will or by the
intestate laws of any state or Territory," does not apply to the
intangible personal property in this country, of an alien domiciled
abroad, whose property passed to his son, also an alien domiciled
abroad, partly by will and partly by the intestate laws of such
foreign country.
The act does not make the duty payable, when the person
possessed of such property dies testate, if it would not be
payable, if such person bad died intestate, and the words "passing
by will" are limited to wills executed in a state or territory
under whose laws the property would pass, if the owner had died
intestate.
This case came up upon certain questions of law arising in an
action brought in the Circuit Court for the Southern District of
New York by Martinez, as ancillary administrator with the will
annexed of the estate of Salvador Elizalde, against the collector
of internal revenue, for the refund of an inheritance tax paid to
the defendant upon certain personal property in the City of New
York.
The facts out of which the questions arose are as follows:
Salvador Elizalde, a nonresident alien, a subject of the King of
Spain, who had never resided within the United States, died in
Paris, France, on April 27, 1899, leaving a will in the Spanish
language, executed in Paris, in the year 1891, pursuant to the laws
of Spain. This will was filed and protocolized in the office of the
Spanish counsel in Paris, and thereby, under the laws of Spain and
the consular convention or treaty between Spain and France, Arturo
Elizalde, the sole legatee under said will, became entitled to the
possession and administration of all the
Page 184 U. S. 579
personal property of the decedent. Said Arturo Elizalde is the
only son and sole next of kin of the decedent, and is a nonresident
alien and a Spanish subject. He has resided all his life in Spain
and France, and has never resided in the United States. Said will
purports to give all of the personal property of the decedent to
his said son, but, by the laws of Spain, only one-third of the
property passed by the will, and the remaining two-thirds passed to
said son by and under the Spanish intestate law.
The decedent left certain federal, municipal, and corporate
bonds, of the par value of $225,400, in the custody of his agents
in the City of New York, and they were within the third collection
district of New York at the date of his death.
After the filing of said will in Paris, Arturo Elizalde entered
upon the administration of the decedent's personal estate, and
appointed the defendant in error, Miguel R. Martinez, his attorney
for the purpose of receiving ancillary letters of administration
with the will annexed in the State of New York, and such letters
were issued to him by the surrogate of New York county. After
receiving such letters, said Martinez took possession of said
bonds.
The United States Commissioner of Internal Revenue, under the
alleged authority of the twenty-ninth and thirtieth sections of the
Act of Congress of June 13, 1898, entitled "An Act to Provide Ways
and Means to Meet War Expenditures and for Other Purposes,"
assessed an internal revenue tax of $4,293.76 upon a legacy and
distributive share arising from personal property in the hands of
the administrator, defendant in error, who paid said tax to United
States collector of internal revenue for the Third District of New
York, plaintiff in error, under protest and upon compulsion of the
collector's threat of distraint and sale, and made the statutory
application for its refund to the Commissioner of Internal Revenue,
who rejected the application. The administrator then brought this
action in the Circuit Court of the United States for the Southern
District of New York against the collector to recover the amount of
the tax.
The collector demurred; the demurrer was overruled, and a
Page 184 U. S. 580
final judgment entered against the collector for the amount
claimed, with interest and costs. The collector then brought the
action into the circuit court of appeals, which certified to this
Court the following questions of law arising out of the foregoing
facts:
"1. Is any tax or duty imposed by the twenty-ninth and thirtieth
sections of the Act of Congress of June 13, 1898, entitled 'An Act
to Provide Ways and Means to Meet War Expenditures and for Other
Purposes,' upon the passing of any legacy arising out of the
personal property of a nonresident alien who has never resided or
had a domicil within the United States, and who dies without the
United States in the year 1899, leaving a will made and executed at
his foreign domicil, pursuant to the laws thereof, by which he
gives all his property to a nonresident alien legatee, and who
leaves certain personal property within the State of New York
exceeding $10,000 in value?"
"2. Is any tax or duty imposed by the twenty-ninth and thirtieth
sections of the Act of Congress of June 13, 1898, entitled 'An Act
to Provide Ways and Means to Meet War Expenditures and for Other
Purposes,' upon the passing of any distributive share arising out
of the personal property of a nonresident alien who has never
resided or had a domicil within the United States, and who dies
without the United States, in the year 1899, intestate, and by the
law of his foreign domicil all of his personal property passes to
his son, also a nonresident alien, and who leaves certain personal
property within the State of New York, exceeding $10,000 in
value?"
MR. JUSTICE BROWN delivered the opinion of the Court.
This case raises the question whether the inheritance tax
law
Page 184 U. S. 581
of the United States applied, in 1899, to the intangible
personal property of a nonresident alien who never had a domicil in
the United States and died abroad -- such personal property being
within the United States and having passed to his son, also an
alien domiciled abroad, as sole legatee and next of kin of the
deceased, partly under a will executed abroad and partly under the
intestate laws of Spain.
By the twenty-ninth section of the War Tax Law of June 13, 1898,
30 Stat. 448, 464,
"any person or persons having in charge or trust, as
administrators, executors, or trustees, any legacies or
distributive shares arising from personal property . . . passing .
. . from any person possessed of such property, either
by will
or by the intestate laws of any state or territory, . . .
shall be, and hereby are, made subject to a duty or tax,"
etc.
The ancient maxim of the law
mobilia sequuntur personam
was the outgrowth of conditions which have largely ceased to exist,
and of an age when personal property consisted principally of
articles appertaining, as the name indicates, to the person of the
owner, such as gold and silver, jewels, apparel, and less
immediately to horses, cattle, and other animals, and to the
products of the farm and the shop. As this property was, in
primitive times, usually kept under the personal supervision of the
owner, and was often carried about by him on his journeys (as it
often still is in Oriental countries), the principle became
incorporated in the law that its locality was determined by the
domicil of the owner, and that his rights with respect to such
property were fixed by the law of that domicil.
While the enormous increase in the amount and variety of
personal property during the past century has necessitated certain
limitations of the maxim, particularly in matters of taxation, it
is by no means obsolete. It is still the law that personal property
is sold, transmitted, bequeathed by will, and is descendible by
inheritance according to the law of the domicil, and not by that of
its situs.
Cross v. United States Trust Co., 131 N.Y. 330;
Ennis v.
Smith, 14 How. 424;
Damment v. Osborn, 141
N.Y. 564. In matters of taxation, however, and of subjecting the
personal property of nonresidents to the
Page 184 U. S. 582
claims of local creditors of the owner, serious encroachments
have been made upon the ancient maxim, and a rule has grown up in
modern times that legislatures may deal with the personal as well
as with the real property of nonresidents within their
jurisdiction, and that such property, while enjoying the protection
and benefits of the local law, may be taxed for the expenses of the
local government. These doctrines have found expression in a large
number of cases in this Court.
Green v. Van
Buskirk, 5 Wall. 307,
74 U. S. 7 Wall.
139;
Hervey v. Rhode Island Locomotive Works, 93 U. S.
664;
Walworth v. Harris, 129 U.
S. 355;
Security Trust Company v. Dodd,
173 U. S. 624, and
cases there cited.
Recent cases in this Court have affirmed very broadly the right
of the legislature to tax the local property of nonresidents, and
particularly of corporations who are permitted by comity to do
business within the state.
Delaware Railroad
Tax, 18 Wall. 206;
Erie
Railway Co. v. Pennsylvania, 21 Wall. 492;
Western Union Tel. Co. v. Pennsylvania, 125 U.
S. 530;
Marye v. Baltimore & Ohio Railroad,
127 U. S. 117;
Pullman's Palace Car Co. v. Pennsylvania, 141 U. S.
18;
Adams Express Co. v. Ohio, 166 U.
S. 185. The same principle has been applied not only to
tangible property but to credits and effects.
Tappan v.
Merchants' National Bank, 19 Wall. 490;
Savings
Society v. Multnomah County, 169 U. S. 421;
New Orleans v. Stempel, 175 U. S. 309;
Bristol v. Washington County, 177 U.
S. 133.
The question in each case is not of the power of the legislature
to tax the personal property of nonresidents, both tangible and
intangible, since that is well established both in England and
America,
Mager v.
Grima, 8 How. 490, but of its intent to do so by
the particular act in question. The inheritance tax law of the
United States above cited applies to property "passing by will or
by the intestate laws of any state or territory." As the property
in this case did not pass under any will executed in any state or
territory of the United States, or by the intestate laws of any
such state or territory, the case is not within the literalism of
the act, unless we are to use the word "state" in a sense broad
enough to include a foreign state or territory. As
Page 184 U. S. 583
matter of fact, the decedent was a Spanish subject, who had
never resided in the United States, had executed a will at Paris in
the Spanish language, pursuant to the laws of Spain, under which
will one third of his property passed to his son and two-thirds to
the same person under the intestate laws of Spain. The property
left by the will consisted of federal, municipal, and corporation
bonds, in custody of the agents of the deceased in New York. It is
the locality of the property within the jurisdiction of the United
States which subjects it, if at all, to the legacy or succession
tax.
It is an old and familiar rule of the English courts, applicable
to all forms of taxation, and particularly special taxes, that the
sovereign is bound to express its intention to tax in clear and
unambiguous language, and that a liberal construction be given to
words of exception confining the operation of duty,
Warrington
v. Furbor, 8 East 242, 247;
Williams v. Sanger, 10
East 66, 69;
Denn v. Diamond, 4 B. & C. 243, 245;
Tomkins v. Ashby, 6 B. & C. 541;
Doe v.
Smith, 8 Bing. 146, 152;
Wroughton v. Turtle, 11 M.
& W. 561, 567;
Gurr v. Scudds, 11 Exchq.190, though
the rule regarding
exemptions from general laws imposing
taxes may be different. Cooley on Taxation 146;
In re
Enston, 113 N.Y. 174, 177.
We have ourselves had repeated occasion to hold that the customs
revenue laws should be liberally interpreted in favor of the
importer, and that the intent of Congress to impose or increase a
tax upon imports should be expressed in clear and unambiguous
language.
Hartranft v. Wiegmann, 121 U.
S. 609;
American Net & Twine Co. v.
Worthington, 141 U. S. 468;
United States v. Wigglesworth, 2 Story 369;
Powers v.
Barney, 5 Blatchf. 202.
It is pertinent in this connection to examine similar statutes
passed in other countries and in the several states of this Union,
and to inquire what construction is given to them. By the English
Tax Legacy Act of 1796, a tax was imposed on every legacy "given by
any will or testamentary instrument to any person who shall die
after the passing of this act." In
Attorney General v.
Cockerell, (1814) 1 Price 165, this was held by the Court of
Exchequer to apply to a legacy bequeathed by a
Page 184 U. S. 584
British subject residing in the East Indies to persons living in
England, if the executor proved the will in England, and paid the
legacy there, though the testator held his property in India, and
resided and made his will and died there. The case was put upon the
ground that the will was proved in England, that the executors had
received the property there, and that the legatees resided there
and were to be paid there. But the case is further distinguishable
from the one under consideration in the fact that the testator was
a British subject and domiciled in a British possession, although
the stress of the case was laid upon the residence of the legatees
in England.
Attorney General v. Beatson, (1819) 7 Price
560, differs from the last one only in the fact that the property
bequeathed was in India, and was remitted to England and paid to
legatees residing in Scotland. But it was held in
Estate of
Ewin, (1830) 1 Cr. & Jer. 151 (1830), that foreign stocks,
the property of a testator domiciled in England, were liable to the
legacy duty, although the stocks were transferable and the
dividends were payable in the foreign countries. In this case, the
law of the domicil was held to be controlling and the domicil to be
the situs of the personal property. The two cases from Price were
not cited.
In
Jackson v. Forbes, 2 Cr. & Jer. 382, a testator
born in Scotland, who resided and died in India, leaving property
there, but none in England, left his property to his four natural
children. The property was collected by his executors, sent to
England, and invested in their own names. The court held the
property exempt from legacy duties, apparently upon the ground that
the property was administered by the executors without necessarily
invoking the aid of the Court of Chancery, although no reasons were
given in the opinion. Up to this time, it had been though that, if
the legacy were paid from assets administered in England, the duty
was payable. The two cases from Price were cited, but not
discussed. This case was subsequently affirmed by the House of
Lords under the name of
Attorney General v. Jackson, 8
Bligh. (N.S.) 15. The case of
Logan v. Fairlie, 1 Mylne
& Craig 59, was a similar case, and the legacy was held to be
exempt upon its authority.
But in
Arnold v. Arnold, 2 Mylne & Craig 256, a
similar
Page 184 U. S. 585
case of a testator residing and dying in India, leaving property
there which was remitted to England and administered there, the
legacy tax was held not to be payable, and the question was
regarded as finally settled by
Attorney General v.
Jackson. The two cases from Price were overruled.
Finally, in
Thomson v. Advocate General, 12 Cl. &
Fin. 1, a British-born subject died, domiciled in a British colony.
At the time of his death, he was possessed of personal property in
Scotland. Probate of his will was taken out in Scotland for the
purpose of administering that property, and legacies were paid to
legatees residing there. It was held by the House of Lords that no
legacy duty was payable. The two cases from Price were flatly
overruled, the other cases cited and discussed at length, and the
doctrine of domicil applied. This case must be regarded as settling
the law of England upon the subject.
It will be observed in these cases that the testator was a
British subject, but in the
Case of Bruce, 2 Cr. &
Jer. 436, the testator was an American who lived and died abroad,
having appointed an English executor and bequeathed property in
England to legatees residing there. The case is exactly in point,
and the court had no difficulty in reaching the conclusion that the
property was not liable to legacy duty.
There are some later cases in England, but none that seem to
qualify the rule laid down in
Thomson v. Advocate General.
In some of them, a distinction is drawn between the legacy tax act
and the succession duty act, which came into operation May 19,
1853, and in
In re Lovelace, 4 De Gex & Jones 340, it
was said that the latter act applied to a succession
inter
vivos under a British settlement to British property vested in
British trustees, and falling under the jurisdiction of a British
court, although the persons entitled were aliens domiciled abroad.
This case arose under an English marriage settlement made in
England on the marriage of two English subjects, and affected
English personalty only. In
Wallop's Trust, 1 De Gex,
Jones & Smith 656, a distinction was drawn between the Legacy
Act of George III and the Succession Duty Act, and a broader
construction given to the latter. In
Wallace v. Attorney
General, L.R. 1 Ch.App. 1, it was held that a succession duty
was
Page 184 U. S. 586
not payable on legacies given by the will of a person domiciled
in a foreign country. The law was treated as settled by
Thomson
v. Advocate General, 12 Cl. & F. 1, and the question
discussed on principle in a vigorous opinion. The converse of this
case is that of
Attorney General v. Napier, 6 Exch. 217,
in which a British-born subject died in India, though he had never
acquired a domicil there, and it was held that the whole of his
property, though chiefly situate abroad, was liable to a legacy
duty. This case is similar to that of
Ewin, 1 Cr. &
Jer. 151, above cited, though decided twenty years later.
See
also Attorney General v. Campbell, L.R. 5 H.L. Eng. &
Irish Apps. 524;
Lyall v. Lyall, L.R. 15 Eq. 1.
From this analysis of the English cases, it clearly appears
that, under a general act imposing a duty upon legacies, the law of
the domicil of the testator controls, and if he be domiciled
abroad, whether an alien or a British subject, his legacies are
exempt, whether the property be in England at the time of his death
or be subsequently remitted there by his executors for local
administration and distribution.
We proceed now to an examination of the state decisions upon the
same subject, which, with one or two exceptions, tend in the same
direction. The Massachusetts collateral inheritance law of 1891
imposes a tax upon
"all property
within the jurisdiction of the commonwealth, .
. . whether belonging to inhabitants of the commonwealth or
not, and whether tangible or intangible, which shall pass by
will or by the laws of the commonwealth regulating intestate
succession,"
etc. In
Callahan v. Woodbridge, 171 Mass. 595, it was
held that, under this act, the succession to property of
nonresidents was expressly taxed as if the property belonged to
inhabitants of the commonwealth, and that the language "which shall
pass by will or by the laws of the commonwealth regulating
intestate succession," taken in connection with the clauses
immediately preceding it, applies to foreign wills, and to property
that passes under the statute of this commonwealth which regulates
the succession to the property of a nonresident owner after his
death. The testator in that case lived in the State of New York,
but the property was within the jurisdiction of Massachusetts.
Page 184 U. S. 587
The statute was held to apply to property tangible or
intangible. We make no criticism of this case, which was placed
expressly upon the language of the statute.
The inheritance tax law of New York of 1885 imposed a tax
upon
"all property which shall pass by will or by the intestate laws
of this state, from any person who may die seised or possessed of
the same while being a resident of the state, or which property
shall be within this state, or any part of such property . . .
transferred by deed, grant, sale, or gift made or intended to take
effect . . . after the death of the grantor,"
etc. In
Matter of Enston, 113 N.Y. 174, this was held
not to apply to property within the state which passed by will or
intestacy from a nonresident decedent to collateral relatives or
strangers, legatees domiciled in the state, and the latter clause,
"or which property shall be within the state," was held to be
limited to such as was transferred by deed, grant, sale, or gift
inter vivos. The act was amended in 1887 so as to
include
"all property which shall pass by will or by the intestate laws
of this state, from any person who may die seised or possessed of
the same while a resident of this state, or
if such decedent
was not a resident of this state at the time of his death,
which property or any part thereof shall be within this state."
And in
Romaine's Case, 127 N.Y. 80, it was held to
apply to personal property in New York, owned by a nonresident
intestate at the time of his death, which was habitually kept or
invested by him there. There can be but little doubt of the
propriety of this ruling. In
Whiting's Case, 150 N.Y. 27,
the same rule was extended to bonds of foreign as well as domestic
corporations and certificates of stock of domestic corporations
(but not of foreign) owned by a nonresident decedent but deposited
by him in a safe deposit vault in New York.
See also Bronson's
Case, 150 N.Y. 1, and
Houdayer's Case, 150 N.Y. 37.
These cases seem rather to accentuate the general principle that
general statutes imposing posing taxes upon legacies do not apply
to the personal property of nonresident testators, and that a
special inclusion of such is necessary to subject it to
taxation.
The inheritance tax law of Maryland subjects to taxation all
Page 184 U. S. 588
property "passing from any person who may die seised or
possessed thereof,
being in this state," and it was held
in
State v. Dalrymple, 70 Md. 294, that the words "being
in this state" referred, not to the decedent himself, but to his
property. The testator was a resident of California, and his
property was also bequeathed to residents of the same state. The
property which was in Maryland consisted of an undivided quarter of
the personal estate of the brother of the testator, who died in
Maryland. The act was held to apply, though the testator's domicil
was in California. The English cases were cited and held to be
distinguishable by reason of the peculiar language of the Maryland
act. The language was evidently ambiguous, but, the court having
held that the words "being in this state" applied to the property,
and not to the person, of course, its liability followed. A like
construction was given to the same words in
Commonwealth v.
Smith, 5 Pa. 142;
In re Short, 16 Pa. 63. The case of
Billings v. People, 189 Ill. 472, is of no value, as the
testator, as well as his legatees, were domiciled in Illinois, and
the question was as to the liability of the widow's dower.
The case of
Alvany v. Powell, 2 Jones Eq. 51, is
directly in point, and undoubtedly sustains the positions of the
government in this case. The North Carolina inheritance act imposed
a tax upon
"all personal property or goods bequeathed to strangers or
collateral kindred or which shall be distributed to or amongst the
next of kin of any intestate when such next of kin are collateral
relations of such intestate."
The act was held to apply to property in North Carolina
descending to a brother from an intestate domiciled in Canada. The
court was satisfied that the true principle, both in regard to real
and personal property, was the situs of the property. The English
case of
Thomson v. Advocate General, 12 Cl. & F. 1,
decided by the House of Lords, was considered at length, and thus
criticized:
"No one can read the opinion delivered before the Lords in the
case of
Thomson v. Advocate General, which is the case in
which the principle of the domicil is finally settled, without
being struck with the fact that there is throughout out a marked
paucity of reasoning."
The North Carolina case was decided in 1854, and, so far as
we
Page 184 U. S. 589
know, has not been followed in any other state, and it is the
only one to which our attention has been called that seems to be in
point in favor of the construction contended for by the
government.
There are a number of other cases in the state courts, but they
either involve questions of taxation under general laws imposing
taxed upon real and personal property, not being special
inheritance taxes, or the language of the particular statute is
such as to create little doubt as to the intention of the
legislature to tax or not to tax the particular inheritance in
question.
Small's Estate, 151 Pa. 1;
Weaver's Estate
v. State, 110 Ia. 328;
State v. St. Louis County
Court, 47 Mo. 594;
Catlin v. Hull, 21 Vt. 152;
People v. Home Ins. Co., 29 Cal. 533;
Hoyt v.
Commissioners, 23 N.Y. 224;
People v. Gardner, 51
Barb. 352. In some jurisdictions, a distinction has been made
between tangible and intangible property which does not arise in
this case.
Orcutt's Appeal, 97 Pa. 179.
The tax in question in this case, not being upon the property
itself, but upon the succession,
United States v. Perkins,
163 U. S. 625;
Magoun v. Illinois Trust & Savings Co., 170 U.
S. 283;
Knowlton v. Moore, 178 U. S.
41, laws imposing general taxes upon real and personal
property are not controlling when applied to taxes upon the
succession, when such succession takes place and is governed by the
laws of a foreign country. The actual situs of the property in such
cases cuts but a small figure, while, in the case of general taxes
upon such property, it is now considered determinative of the whole
question.
The question involved in this case, however, arose under the Act
of June 30, 1864, before Mr. Justice Gray of this Court, while
holding the circuit court for Massachusetts, in
United States
v. Hunnewell, 13 F. 617. Section 124 of that act imposed a
duty on legacies or distributive shares arising from personal
property passing from any person possessed of such property, either
by will, or by the intestate laws of any state or territory. The
action was brought to recover the tax upon American securities
bequeathed by a French citizen domiciled in France to a son who was
also domiciled there. The will was executed in conformity with the
French law, and was
Page 184 U. S. 590
duly proved there, though a local executor was appointed by the
probate court in Boston to transfer to the legatee the securities
in question. It was held that section 124 did not make the duty
payable when the person possessed of such property died testate if
it would not be payable if such person died intestate, and as if
the deceased had died intestate, her son would not have taken a
distributive share by the intestate laws of any state or territory,
his rights were the same if he took by will. In other words, that
the words "either by will or by the intestate laws of any state or
territory" must be construed together, and would apply only to
wills executed within any state or territory of the United States.
The case is precisely in point.
We regard this case as a correct exposition of the law. It is
not necessary to rely exclusively upon the English cases, or upon
those in the state courts, which hold that a general law imposing
an inheritance tax upon property passing by will or descent does
not apply to intangible personal property within the jurisdiction
of the taxing power, but owned by persons domiciled abroad, under
the laws of which domicil the property passes, since the statute in
question here applies only to property passing "either by will or
by the intestate laws of any state or territory." Now, as the
finding in this case is that the property passed partly under a
Spanish will and partly under the intestate laws of Spain, the only
question is whether the words "passing by will" are limited by the
subsequent words "or the intestate laws of any state or territory."
We are clearly of opinion that they are, and that the words
"passing by will" are limited to wills executed in "any state or
territory" under whose laws the property would pass if the owner
had died intestate. The whole scheme of the act evidently
contemplates the application of the tax only to the property of a
person domiciled in a state or territory of the United States whose
property is transmitted under our laws. This is evident not only
from the language of section 29, above quoted, but from the
provision of section 30
"that every executor, etc., . . . shall pay to the collector or
deputy collector of the district
of which the deceased person
was a resident the amount of the duty or tax assessed upon
such legacy or distributive
Page 184 U. S. 591
share,"
etc. It would be difficult to find language more expressive of
an intent to confine the tax to persons domiciled in this country.
It need only be added that, while the words "state or territory"
are used in treaties, and perhaps also in some acts of Congress
regulating our international relations, as including foreign
states, they are used in the Constitution and in ordinary acts of
Congress as applying only to states or territories of the United
States.
If, as in several of the states, the words "passing by will or
by the intestate laws of this state," or similar words, are
connected with words declaring that the tax was intended to be
imposed upon the estates of persons domiciled abroad, the latter
provision is held to apply, and the words "passing by will or the
intestate laws of this state" are held to include the estates of
persons domiciled abroad. Such is the case in Illinois:
Billings v. Illinois, 189 Ill. 472; Massachusetts:
Callahan v. Woodbridge, 171 Mass. 595;
Greves v.
Shaw, 173 Mass. 205; Maine:
State v. Hamlin, 86 Me.
495; Ohio: Laws of 1894, p. 166; Connecticut: Laws of 1889, p. 106;
Tennessee:
State v. Alston, 94 Tenn. 674. But it is hardly
necessary to say that the construction given to these statutes
would have no application to cases where words expressly providing
for the estates of nonresidents are omitted.
To say that we recognize by comity the law of a foreign domicil
as controlling the transmission or succession of personal property
because it thereby becomes
our law (and the property
therefore taxable), as is indicated in some cases, notably in
Alvany v. Powell, 2 Jones Eq. 51, is misleading, and
little more than a play upon words. When we speak of
our
laws, we mean to be understood as referring to our own statutory
laws, or the common law we inherited from the mother country, and
when we apply the laws of a foreign domicil, we do so not because
they are our laws, but because, upon principles of comity, we
recognize those laws as applicable to the particular case. But to
speak of such foreign laws as thereby becoming "the intestate laws
of any state or territory" wherein they are enforced is practically
to confound the whole distinction between the law of the situs and
the law of the domicil. We do not
Page 184 U. S. 592
enforce the law of Spain in this case because it is our law, but
because the practice of all civilized nations is to recognize the
law of the domicil as governing the transmission and inheritance of
personal property, and to prevent the confusion that would follow
if estates, situated possibly in half a dozen countries, were
administered and distributed according to the laws of each country
in which any portion of such estate happened to be located. We
decline to hold the tax involved in this case applicable to this
estate because the words of the statute do not require it, and
because the thing taxed -- that is, the transmission of the
property to the legatees or next of kin -- takes place in a foreign
country. It is true that Congress may, and in certain cases has
seen fit to, adopt the laws of a particular state, and apply them
within a territory, as was done when Congress applied the laws of
Oregon to Alaska, Act of May 7, 1884, c. 53, § 7, 23 Stat. 24, 25,
and certain statutes of Nebraska to Oklahoma, Act of May 2, 1890,
c. 182, § 11, 26 Stat. 81, 87. They thereby became the laws of
those territories as much as if enacted by a territorial
legislature, and were universally applicable. But that result
follows expressly from the statute, and not from the recognition of
the foreign law as applicable to a particular case. Section 2694 of
the New York Code recognizes this distinction in its requirement
that,
"except where special provision is otherwise made by law, the
validity and effect of the testamentary disposition of any other
[than real] property situated within the state, and the ownership
and disposition of such property where it is not disposed of by
will, are regulated by the laws of the state or country of which
decedent was a resident at the time of his death."
Conceding it to be within the power of Congress to impose an
inheritance tax upon property in this country, no matter where
owned or transmitted, it has not done so in this case, and
The questions propounded by the court of appeals must be
answered in the negative.
MR. JUSTICE WHITE and MR. JUSTICE McKENNA concurred in the
result.