Ruckgaber v. Moore.

plicable thereto, to pay such a sum to each creditor, residing within the State, as equals that creditor's share of all the distributable assets, or to distribute the same among legatees or next of kin, or otherwise dispose of the same, as justice requires."

The defendant urges that the last section shows "the State's purpose to retain control of the non-resident decedent's property, giving the Surrogate's Court, or any other court of the State which has jurisdiction of the action, full power to administer the estate of the decedent here, not only as it affects the rights of the State under the Transfer Tax Act, and otherwise, but also as between the parties interested, including resident creditors of the deceased, and his legatees or next of kin themselves," and that section 2694 regulates "the succession to the property of deceased non-residents, and provides a definite rule for the settlement of their estates. As to real property it declares that the validity and effect of a testamentary disposition of real property, or the course of its descent where it is not disposed of by will, shall be regulated by the laws of the State without regard to the residence of the decedent. However, with regard to personal property (which is included in the term 'other property') it provides that the validity and effect of a testamentary disposition by a non-resident of personal property situated within the State, or its distribution where not disposed of by will, shall be regulated by the laws of the State or country of which the decedent was a resident at the time of his death, except where otherwise prescribed by the law of this State. The purpose of the Legislature is apparent in adopting this section. It is intended to regulate the succession to the property of deceased non-residents, and provide a rule by which our courts could administer the property of such nonresident decedents, located in this State, and to retain control of the same. It makes the law of the testator's

Ruckgaber v. Moore.

residence or domicile the law of this State, for the purpose of administering the non-resident decedent's property, and a legacy, &c., of non-resident's property, situated within this State, thus passes either by will or the intestate laws' of that State, as the case may be, for otherwise the laws of such other State or such foreign country could have no operation or effect within this State."

The answer to this is clear. The title to the estate transmitted springs from the foreign, not the domestic, law. The statute in this regard is declaratory.

In Ennis v. Smith (14 Howard, 424) it is said by Mr. Justice Wayne:

"For several hundred years upon the continent and in England, from reported cases for a hundred years, the rule has been that personal property, in cases of intestacy, is to be distributed by the law of the domicile of the intestate at the time of his death. It has been universal for so long a time that it may now be said to be a part of the jus gentium. Lord Thurlow speaks of it as such in the House of Lords, in the case of Bruce v. Bruce. Erskine, in his Institutes of the Law of Scotland (B. 3, tit. 9, sec. 4, 644) says this rule is founded on the laws of nations." Mr. Justice Wayne calls attention to one of the reasons for the rule, given by Lord Hardwicke, in these words, so pertinent to the present controversy:

"A contrary rule would be extremely mischievous, and would affect our commerce. No foreigner could deal in our funds but at the peril of his effects going according to our laws, and not those of his own country."

In Dammert v. Osborn (141 N. Y., 564, 567) it is said:

"The fundamental error that pervades all the reasoning of the learned counsel on this subject is to be found in the assumption that the courts of this State can annul a disposition of personal property in a foreign will, valid by the laws of the domicile, and distribute the property

Ruckgaber v. Moore.

to claimants here, contrary to the terms of such disposition, as interpreted by the law under which it was made. No controlling authority can be found in support of such a proposition.'

In Cross v. U. S. T. Co. (131 N. Y., 330, 339), Judge O'Brien states:

"It is a general and universal rule that personal property has no locality. It is subject to the law of the owner's domicile as well in respect to a disposition of it by act inter vivos as to its transmission by last will and testament, and by succession upon the owner dying intestate. This is, in substance, the language in which Judge Denio stated the law in this court, and which he concisely and clearly extracted from the authorities cited by him (Parsons v. Lyman, 20 N. Y., 112). The learned judge added that "the principle, no doubt, has its foundation in international comity, but it is equally obligatory, as a rule of decision on the courts, as any legal rule of purely domestic origin. It does not belong to the judges to recognize or to deny the rights which individuals may claim under it at their pleasure or caprice; but it having obtained the force of law by user and acquiescence, it belongs only to the political government of the State to change it whenever a change becomes desirable." *** Should our Legislature deem it for the public good to repeal the statute relating to wills and to provide that all property should, upon the death of the owner, pass under the laws of intestacy, a disposition by will of personal property, actually within the territory of the State, but owned by a person domiciled in another State, would still be valid, providing it was valid by the law which governed the owner."

These quotations are not made because the rule stated by them is in doubt, but for the purpose of meeting the suggestion of the defendant that the Code of Civil Procedure is the primary source of the power to transmit, or

Ruckgaber v. Moore.

of the power to receive. Such statute is merely declara'tory of the law. It is not the source of title, but simply points out in general terms where the courts shall lock for the law which governs the transmission of the title. Lastly, the authority for the construction adopted is ample. The War Revenue Act of 1898, so far as it imposes a legacy tax, as appears in Knowlton v. Moore (178) U. S., 41), is a reproduction of the Act of 1864, which last act, as regards duties on legacies, substantially adopts the English system. Under the Act of 1864 it was decided by the United States Circuit Court, District of Massachusetts (Gray and Lowell, JJ.) in United States v. Hunnewell (13 Fed. Rep., 617), that the legacy duty imposed thereby is made payable on the estates of those persons only whose domicile at the time of their death is in the United States, and that it is not payable when the person possessed of such property dies intestate, so it would not be payable if such person die intestate and if an heir takes a distributive share by the interstate laws of the place of domicile of the ancestor at the time of the latter's death. The facts involved in that case show that the action was to recover a tax on a legacy alleged to be due upon American securities given by the will of a woman who, at the time of her death, was a citizen and resident of France, to her son, then and thereafter a resident of France. The will was executed in conformity with the law of France, was proved there, and a copy thereof was filed in the Probate Office of the County of Suffolk, State of Massachusetts, and the defendant, a citizen of such State, was appointed by the Probate Court of that county executor. The Hunnewell case was followed in United States v. Morris (27 Fed. Rep., 341). See also, upon this general subject, Orcutt's Appeal (97 Penn. State, 179), Matter of Enston (113 N. Y., 174.) The English Act was similarly interpreted in Thompson v. Advocate-General (12 Clark & F., 1, 13 Simon's Ch., 153 [House of Lords, 1845];

Bush v. O'Brien, et al.

see, also, Wallace v. Attorney-General, L. R., 1 Ch. App., 1).

The opinion of Judge Gray in the Hunnewell case is obviously a correct exposition of the law. It results from the foregoing views that the demurrer should be overruled.

IRVING T. BUSH, APPELLANT, v. JOHN O'BRIEN ET AL., RESPONDENTS.

COURT OF APPEALS-OCTOBER, 1900.

$740.

Power of corporation counsel-Compromise of claims, and allowance of judgment therefor, against city, without consent of comptroller.

The Corporation Counsel of the City of New York has no exclusive power to compromise claims against the city and allow judgment to be taken therefor. The power to compromise and settle claim is vestees in the comptroller, whose consent must be first obtained before the corporation counsel can authorize the claimant to take judgment.

A taxpayer's action may be maintained to restrain the payment of a judgment which has been entered against the city on an affidavit of verification of the corporation counsel, under section 740 of the Code, falsely stating that he was authorized to offer to allow such judgment to be taken. In such an action, based upon the provision of the statute to prevent an official illegal act, it is not necessary for the plaintiff to show that the city was not justly indebted to the amount stated in the judgment. An enactment by the Legislature prohibiting the corporation counsel in express terms from confessing judgment does not render the question academic with reference to cases which arose prior to the passage of the act.

(Decided October 2, 1900.)

Appeal, by permission, rom an interlocutory judgment of the Appellate Division, First Department, affirming a judgment sustaining a demurrer to the plaintiff's complaint.