relatives. It was subjected to repeated amendments, the effect of which in nearly every instance was either to enlarge the class of persons subject to the tax or to extend its application to some species of property which the courts had held not to fall within its terms. The distinction between property justly subject to ordinary taxation and that liable to the imposition of the transfer tax was early appreciated. In Matter of Knoedler (140 N. Y. 377) a policy of life insurance payable to the estate of the deceased was held subject to the tax. In the opinion there rendered Judge Maynard said: "The argument is made that it is only property which is liable to taxation under the General Tax Law of the state which can be taxed under the act relating to taxable transfers, and that, inasmuch as life insurance policies cannot be included in the valuation of a taxpayer's property under the general law, they cannot be considered in assessing a tax upon the collateral inheritance. The main premise upon which this proposition rests is manifestly inadmissible. The Taxable Transfer Law has no reference or relation to the general law .. it proceeds upon a new theory of the right of the government to tax and establishes a new system of taxation. It takes the right of succession to property and measures the tax in the method specifically prescribed. All property having an appraisal value must be considered, whether it is such as might be taxed under the general law or not. Many kinds of property might be enumerated which are not assessable under the general law, but which are appraisable under the collateral inheritance tax.' Such was the settled construction of the inheritance tax laws when the act of 1896 was passed. That act, as already said, was a revision of the existing law, and an attempt to bring into a single statute all existing legislation relative to taxation by the state. In Henavie v. N. Y. C. & H. R. R. Co. (154 N. Y. 278, 281) Judge Vann said: "The rule in the case of a revision of statutes is that where the law, as it previously stood, was settled either by adjudication or by frequent application of the statute without question, a mere change in the phraseology is not to be construed as a change in the law, unless the purpose of the legislature to work a change is clear and obvious.' Therefore, because section 242 prescribes that 'all property' shall be subject to the transfer tax and because the revision of the statute should not be held to work a change in the settled law unless the legislative incent to that effect is clearly manifest, we are of opinion that the seat held by the testator was subject to the tax imposed upon it."

Per Cullen, J., in In re Hellman, 174 N. Y. 254, 257, 66 N. E. 809, 95 Am. St. Rep. 582, reversing 77 N. Y. App. Div. 355, 79 N. Y. Suppl. 201.

A seat in the stock exchange is a privilege of value subject to the inheritance tax. In re Curtis, 31 Misc. Rep. 83, 64 N. Y. Suppl. 574.

Conversion.

Conversion by Direction to Pay Mortgages out of Personalty.

The New York courts have consistently refused to follow the Pennsylvania rule but have maintained that the test of taxability is the actual condition of property at the testator's death unaffected by any direction in the will for sale or investment. In re Mills, reported post, p. 854, is not a modification but is an example of this rule.

Direction to Sell Real Estate.

The power of sale conferred on executors does not operate to transfer real estate into personal property for purposes of taxation as the doctrine of equitable conversion is not applicable to subject real estate to taxation. In re Swift, 137 N. Y. 77, 88, 32 N. E. 1096, 18 L. R. A. 709, 64 Hun. 639, 16 N. Y. Suppl. 193, 19 N. Y. Suppl. 292.

Where land is devised and the executor is directed absolutely to sell it the better rule is to assess the tax on the property transferred as the testator leaves it without regard to the operation or effect of equitable rules that apply only to the administration of the estate. In re Sutton, 3 N. Y. App. Div. 208, 38 N. Y. Suppl. 277, affirming 15 Misc. 659, 38 N. Y. Suppl. 102.

A decedent transferred real estate in trust giving a power of sale to the trustees. After the death of the grantor the trust property was condemned for park purposes and the proceeds invested in bonds and mortgages. Upon the death of the daughter without exercising the power given her by the trustee, the court holds that the trust estate descending to her issue is to be treated as personal property.

The courts have held that the doctrine of equitable conversion cannot be invoked for the purpose of subjecting property to taxation under the act. The converse of that proposition must be true and the doctrine should not be invoked for the purpose of exempting the property from taxation. It is only by applying this fiction

that the securities now constituting the trust fund can be regarded as realty. The better rule is to assess the tax on the property transferred as the decedent left it. It is unreasonable that an equitable rule should attach to such absolute property, giving to it a fictitious character different from the real nature, so as to affect the right of the estate to subject the same to taxation. In re Bartow, 30 Misc. Rep. 27, 62 N. Y. Suppl. 1000. A contrary result was reached in In re Wheeler, 1 Misc. Rep. 450, 22 N. Y. Suppl. 1075.

Direction to Invest in Real Estate.

Where the will directed a remainder to be paid to a certain New York church "ten thousand dollars towards the building of a new church" this bequest cannot be treated as real estate, but is personal property, and by no rule of equitable conversion can it become real estate until it has been invested in real estate as directed. It must therefore be treated as a legacy of money. Sherrill v. Christ Church, 121 N. Y. 701, 702, 25 N. E. 50, reversing In re Van Kleeck, 55 Hun. 472.

Tax on Power of Appointment.

Where a will directs a conversion of real estate into personal property the court holds that the actual form in which the property existed at the death of the testator determines its liability to a transfer tax. And this same rule applies to a tax on the execution of the power of appointment. As it is the execution of a power which subjects grantees under it to a transfer tax, it follows that the condition or form of the property at the time of such execution must control. In re Dows, 167 N. Y. 227, 232, 60 N. E. 439, 52 L. R. A. 433, 88 Am. St. Rep. 508, affirming 60 N. Y. App. Div. 630, affirmed sub nomine, Orr v. Gilman, 183 U. S. 278, 22 S. Ct. 213, 46 L. Ed. 176.

Interest of Testator in Estate, the Property of which was Directed to be Sold.

The testator direcced a sale of his real property and his daughter took his share in the proceeds of the real estate. She died before any actual sale and conversion had taken place, leaving a will by which her interest in her father's estate passed to her husband. The court holds that by the direction under the will of the father the land became personal property and therefore there was no tax on the interest passing from the daughter to her husband. In re

Mills, 177 N. Y. 562, 69 N. E. 1127, affirming 86 N. Y. App. Div. 555, 84 N. Y. Suppl. 1135.

Domicile or Situs of Property.

Adjudication of Domicile in Different States.

The fact that the California courts decided that a certain decedent was a resident of California and administered his estate and assessed a tax on that basis does not bar the New York courts. It is not res judicata as to them. In re Cummings, 142 N. Y. App. Div. 377, 127 N. Y. Suppl. 109, reversing 63 Misc. 621, 118 N. Y. Suppl. 684, citing Tilt v. Kelsey, 207 U. S. 43, 28 S. Ct. 1, 52 L. Ed. 95. The court distinguishes the case of Tilt v. Kelsey on the ground that the California probate was only binding on heirs or beneficiaries and not on claimants.

Constitutionality of Double Taxation.

Where a law imposing a tax was in force before the deposit was made by a non-resident in New York, although this fact does not seem to be relied upon by the court, the tax may be levied by the state of New York, although the tax has already been paid on the same deposit by the state of Illinois where the testator was domiciled. The court holds that this does not violate the fourteenth amendment.

"The fact that two states, dealing each with its own law of succession, both of which the plaintiff in error has to invoke for her rights, have taxed the right which they respectively confer, gives no cause for complaint on constitutional grounds. The universal succession is taxed in one state, the singular succession is taxed in another. The plaintiff has to make out her right under both in order to get the money." Per Holmes, J., in Blackstone v. Miller, 188 U. S. 189, 207, 23 S. Ct. 277, 47 L. Ed. 439, affirming 171 N. Y. 682, 69 N. Y. App. Div. 127.

"Faith and Credit" to Judgment of Another State.

Where Illinois had already laid a tax upon the interest of a citizen of Illinois in a deposit in a trust company in New York, it was claimed that for New York to attempt to assess the interest as within the jurisdiction of New York was not giving due faith and credit to the judgment in Illinois. The court replies that the tax does not deprive the plaintiff in error of any of the privileges and immunities of the citizens of New York. It is no such depri

vation that if she had lived in New York the tax on the transfer of the deposit would have been part of the tax on the inheritance as a whole. Blackstone v. Miller, 188 U. S. 189, 23 S. Ct. 277, 47 L. Ed. 439, affirming 171 N. Y. 682, 69 N. Y. App. Div. 127.

Legal Title in Trustee in Another State.

The fact that certain trust property passing under a deed of trust was at the intestate's death in another state with the legal title in the trustee does not affect the liability of the transfer to taxation. The liability in this case accrued at the time of the transfer, no matter when imposed.

The deceased was a resident of this state at the time of the transfer and the property was in this state and the transfer was here made. The deed in question was the deed in trust reserving a life estate to the grantor. In re Keeney, 194 N. Y. 281, 287, 87 N. E. 428, affirming 128 N. Y. App. Div. 893.

Personal Property of Resident.

The personal property of a resident decedent situated whether within or without the state is subject to the tax imposed by the act. In re Swift, 137 N. Y. 77, 88, 32 N. E. 1096, 18 L. R. A. 709, 64 Hun. 639, 16 N. Y. Suppl. 193, 19 N. Y. Suppl. 292.

The intestate, a resident of New York, died in 1894, leaving personal property in Iowa. An administrator appointed by the Iowa court paid a brother of the intestate who lived in Iowa out of the Iowa property. The court holds that the property in question although in a foreign state was subject to the New York tax. The court remarks that whether or not the tax when so assessed can be collected is a question in no manner presented to the court. In re Dingman, 66 N. Y. App. Div. 228, 72 N. Y. Suppl. 694.

Claim Against Estate of Non-resident.

Where the personal estate of a resident of New York consisted entirely of her distributive share in the estate of a deceased sister who resided in Ohio, but no part of this estate had come into the possession of the testatrix prior to her death, but consisted of money sent directly from the trustee of the estate of the deceased sister to the executor of the New York testator for the purposes of distribution, that portion of the personal estate is not liable to taxation. In re Thomas, 3 Misc. Rep. 388, 24 N. Y. Suppl. 713.