The opinion of the court was delivered by
Gibson, C. J.
— The enjoyment of this legacy by the first taker of it, was expressly limited to her life time; and she consequently took a particular interest in it, joined to a power of appointment at her death. Had the testator been an inhabitant of Pennsylvania, it would have been taxable as her property in her life time, and payment of the tax would not have been deferred till her death. He was, however, an inhabitant of Maryland, and the statute imposes no tax on a foreign legacy brought here when received. But money appointed by will under a general power to appoint for any purpose, is held by English chancellors to be equitable assets for payment of the debts of the donee of the power; whence an impression that it is part of the donee’s effects, and in this instance, taxable as such. Truly-speaking, it is not. It is certainly not legal assets, as it would, had it been the donee’s property; for it does not go into the hands of the executor in a course of administration. It is. confessedly not a part of the donee’s estate for the satisfaction of his creditors while he is living, and it cannot be more so when he is dead; for a title which did not vest in him when he had capacity to take, could not vest in him when he had lost all capacity whatever. Yet a chancellor intercepts the fund on its way to the appointee, and applies it to the debts of the donee of the power, not as what is actually a part of his effects, but as what, according to his [475]*475code of morality, ought to have been so for the benefit of his creditors. As was said, in Harrington v. Hale, 1 Cox, 132, he stops the legacy in transitu when a step has been taken to appoint it to the use of any one else; and this, a liberty taken with the direction given to the testator’s bounty pursuant to his authority, and with what is essentially his act performed by the agency of another, is strangely put upon the moral obligation which binds the agent to pay his debts; the assumed violation of which, in not paying them with the money of another — in not robbing Peter to pay Paul — is held to give his creditors a specific equity against a volunteer under his appointment. “It may be a hard case,” said Lord Hardwicice, in Townsend v. Windham, 2 Ves. 8, “but I must not make a precedent that men may make a provision in prejudice of their creditors.” Of what prejudice or wrong would his creditors have reason to complain ? There is such barefaced injustice in applying the bounty of a man to the benefit of those for whom it was not intended, that the mind revolts at it. The appointee claims by the instrument which created the power, (Sugd. on Pow. 25,) and consequently not under, but paramount to the donee who executed it; and it seems impossible to conceive that the donee’s creditors who stand in his place, can have an equity independent of him. A man who is appointed to manage the conduit pipe of another’s munificence, is authorized by a general power of disposal to turn it at will to any quarter within the scope of his discretion; and in reason and justice his creditors have no right to control, because the management of it was not to them, nor even to him for their benefit. It is the bounty of the donor to whom they are strangers, and not the property of his instrument that is to be dispensed. A power instead of the ownership is usually given for the very purpose of enabling him to pass them by; and to give them what was intended for objects that were more in the donor’s view, would be a fraud on him. He might exclude [476]*476"them by an express restriction, and he does so in effect when he gives a legacy not to them nor their debtor, but to persons to be designated by him. In Holmes v. Coghill, 7 Ves. 506, Sir William Grant said “there is no reason why the money he (the donee) had a right to raise, should not be considered his property as much as a debt he had power to recover.” The learned and excellent master of the rolls had forgotten, for the moment, the broad line of distinction between power and property. The creditors of a deceased husband are not entitled to the benefit of his surviving wife’s choses in action, though he might have recovered it, and if it accrued during the coverture, by an action in his own name; and assignees in bankruptcy are authorized to execute a power in the bankrupt for the benefit of creditors only by the 3 G. IV. c. 31, § 53, subsequently made perpetual. There is much more reason in what Lord Eldon said, in Holmes v. Coghill, 12 Ves. 212, when it came before him on appeal. “It is much to be regretted that the right of creditors to receive satisfaction out of the estate of their debtor, should depend upon either artificial modes of conveyancing or artificial rules of law clashing with each other, and not to be reconciled to clear principles of law or equity. I confess I am not able to reconcile what a court of equity has been in the constant habit of doing and what it has refused to do.” Again, — “A court of equity, certainly in favour of creditors, takes upon itself to disregard altogether the quality of the deed; to alter wholly the rights of the parties under it. Sir John Coghill, though bound to pay his creditors, would not be called by law to pay them out of an estate which is the property of another person. Yet equity does so strong an act as to pay them out of the estate which was vested not in. him, but in his son.” Whether for good or for evil, it is certainly a strong act. Yet on the foot of their shallow equity, bred by the commercial temper of the bankrupt law, and founded on too many precedents to be shaken, an English chancellor puts [477]*477his hand into the fund and serves it out to them till all are satisfied, or till nothing remains. Whether this court will feel itself bound to do so remains to be determined.
I have been thus particular in examining the foundation of this doctrine of equitable assets, because the analogy to be drawn from it is the only foot which the commonwealth has to stand on; but its palpable injustice, in any event, must forbid the extension of it to cases merely analogous. But what is the supposed equity of the state as a tax proprietor? It may be said to be as much a moral duty to pay taxes as debts. Why so it is. But it is not either a legal or moral duty of the legatee, who transmits the remainder, to pay the tax on it. That is to be done, if at all, by the collateral recipient of it; and the analogy from a case between debtor and creditor consequently fails. Being pretermitted in the execution of the power, the state has not a legal title; and there can be no equitable title to a tax which is a creature of positive enactment. Her claim as a legal creditor would be a petitio principii; for she would be without pretence to call for a tax which could not be assessed on the legacy as the property of the donee of the power in his life time, or at his death — not in her life time, because she received the legacy in Maryland; and not at her death, because it was transmitted, not by her appointment, but by the testator’s will, of which her appointment became a part. She was free from obligation to execute, the power for the benefit of the state, which was not her creditor when she was alive, and could not become so when she was dead. To sustain the action, therefore, against the defendants as representatives of her person or estate, is impossible.
But Mrs. Duffield is not only a personal representative of the donee, but her appointee; and it is necessary to determine whether the state has a claim on her as a legatee.
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The opinion of the court was delivered by
Gibson, C. J.
— The enjoyment of this legacy by the first taker of it, was expressly limited to her life time; and she consequently took a particular interest in it, joined to a power of appointment at her death. Had the testator been an inhabitant of Pennsylvania, it would have been taxable as her property in her life time, and payment of the tax would not have been deferred till her death. He was, however, an inhabitant of Maryland, and the statute imposes no tax on a foreign legacy brought here when received. But money appointed by will under a general power to appoint for any purpose, is held by English chancellors to be equitable assets for payment of the debts of the donee of the power; whence an impression that it is part of the donee’s effects, and in this instance, taxable as such. Truly-speaking, it is not. It is certainly not legal assets, as it would, had it been the donee’s property; for it does not go into the hands of the executor in a course of administration. It is. confessedly not a part of the donee’s estate for the satisfaction of his creditors while he is living, and it cannot be more so when he is dead; for a title which did not vest in him when he had capacity to take, could not vest in him when he had lost all capacity whatever. Yet a chancellor intercepts the fund on its way to the appointee, and applies it to the debts of the donee of the power, not as what is actually a part of his effects, but as what, according to his [475]*475code of morality, ought to have been so for the benefit of his creditors. As was said, in Harrington v. Hale, 1 Cox, 132, he stops the legacy in transitu when a step has been taken to appoint it to the use of any one else; and this, a liberty taken with the direction given to the testator’s bounty pursuant to his authority, and with what is essentially his act performed by the agency of another, is strangely put upon the moral obligation which binds the agent to pay his debts; the assumed violation of which, in not paying them with the money of another — in not robbing Peter to pay Paul — is held to give his creditors a specific equity against a volunteer under his appointment. “It may be a hard case,” said Lord Hardwicice, in Townsend v. Windham, 2 Ves. 8, “but I must not make a precedent that men may make a provision in prejudice of their creditors.” Of what prejudice or wrong would his creditors have reason to complain ? There is such barefaced injustice in applying the bounty of a man to the benefit of those for whom it was not intended, that the mind revolts at it. The appointee claims by the instrument which created the power, (Sugd. on Pow. 25,) and consequently not under, but paramount to the donee who executed it; and it seems impossible to conceive that the donee’s creditors who stand in his place, can have an equity independent of him. A man who is appointed to manage the conduit pipe of another’s munificence, is authorized by a general power of disposal to turn it at will to any quarter within the scope of his discretion; and in reason and justice his creditors have no right to control, because the management of it was not to them, nor even to him for their benefit. It is the bounty of the donor to whom they are strangers, and not the property of his instrument that is to be dispensed. A power instead of the ownership is usually given for the very purpose of enabling him to pass them by; and to give them what was intended for objects that were more in the donor’s view, would be a fraud on him. He might exclude [476]*476"them by an express restriction, and he does so in effect when he gives a legacy not to them nor their debtor, but to persons to be designated by him. In Holmes v. Coghill, 7 Ves. 506, Sir William Grant said “there is no reason why the money he (the donee) had a right to raise, should not be considered his property as much as a debt he had power to recover.” The learned and excellent master of the rolls had forgotten, for the moment, the broad line of distinction between power and property. The creditors of a deceased husband are not entitled to the benefit of his surviving wife’s choses in action, though he might have recovered it, and if it accrued during the coverture, by an action in his own name; and assignees in bankruptcy are authorized to execute a power in the bankrupt for the benefit of creditors only by the 3 G. IV. c. 31, § 53, subsequently made perpetual. There is much more reason in what Lord Eldon said, in Holmes v. Coghill, 12 Ves. 212, when it came before him on appeal. “It is much to be regretted that the right of creditors to receive satisfaction out of the estate of their debtor, should depend upon either artificial modes of conveyancing or artificial rules of law clashing with each other, and not to be reconciled to clear principles of law or equity. I confess I am not able to reconcile what a court of equity has been in the constant habit of doing and what it has refused to do.” Again, — “A court of equity, certainly in favour of creditors, takes upon itself to disregard altogether the quality of the deed; to alter wholly the rights of the parties under it. Sir John Coghill, though bound to pay his creditors, would not be called by law to pay them out of an estate which is the property of another person. Yet equity does so strong an act as to pay them out of the estate which was vested not in. him, but in his son.” Whether for good or for evil, it is certainly a strong act. Yet on the foot of their shallow equity, bred by the commercial temper of the bankrupt law, and founded on too many precedents to be shaken, an English chancellor puts [477]*477his hand into the fund and serves it out to them till all are satisfied, or till nothing remains. Whether this court will feel itself bound to do so remains to be determined.
I have been thus particular in examining the foundation of this doctrine of equitable assets, because the analogy to be drawn from it is the only foot which the commonwealth has to stand on; but its palpable injustice, in any event, must forbid the extension of it to cases merely analogous. But what is the supposed equity of the state as a tax proprietor? It may be said to be as much a moral duty to pay taxes as debts. Why so it is. But it is not either a legal or moral duty of the legatee, who transmits the remainder, to pay the tax on it. That is to be done, if at all, by the collateral recipient of it; and the analogy from a case between debtor and creditor consequently fails. Being pretermitted in the execution of the power, the state has not a legal title; and there can be no equitable title to a tax which is a creature of positive enactment. Her claim as a legal creditor would be a petitio principii; for she would be without pretence to call for a tax which could not be assessed on the legacy as the property of the donee of the power in his life time, or at his death — not in her life time, because she received the legacy in Maryland; and not at her death, because it was transmitted, not by her appointment, but by the testator’s will, of which her appointment became a part. She was free from obligation to execute, the power for the benefit of the state, which was not her creditor when she was alive, and could not become so when she was dead. To sustain the action, therefore, against the defendants as representatives of her person or estate, is impossible.
But Mrs. Duffield is not only a personal representative of the donee, but her appointee; and it is necessary to determine whether the state has a claim on her as a legatee. She got her legacy by an appointment under the will of a citizen of Maryland; and she stands before us as if she [478]*478were named in it. The act of 1826, on which the claim is founded, provides that “ all estates passing from any person who may be seized or possessed thereof, being within this commonwealth,” shall be subject to a collateral inheritance tax; and the matter is to fix the point of time to which the material clause relates. In Commonwealth v. Smith, 5 Barr, 142, the assets were here at the time of the death, and that is undoubtedly the period which the legislature had in view; for though it be certain that an estate created under a power takes effect as if created by the deed or will which raised the power, it does so only from the execution of the power; yet the distinction is not so obvious as to have suggested to the legislature the occurrence of such a case as the present. In this instance the assets were in Maryland at the testator’s death; the legacy was enjoyed here by the first taker; and no more is required by the second than that she should be at liberty to enjoy the residue of it without disturbance as her predecessor. In point of fact, the corpus was not here at all. The testator directed it to be set apart in Maryland for the use of his sister in Pennsylvania during her life, and for her appointee at her death. Personal property has no locality as to the succession, though the rights of creditors who owe no allegiance to the country of the domicil, are determinable by the lex loci rei sitas; but, in this case, the actual as well as the domiciliary situs was in Maryland where the ownership vested in the appointee. We have then the ordinary case of a legacy given and received in a foreign state; and it is not taxable here.
Judgment affirmed
Where a testator devised his estate in trust for his daughter, for life, and after her decease, in trust for such persons as she should by will appoint; and the daughter by her will devised all her estate to which she was entitled, under the will of her father, in trust for her brothers and sisters, or their children, lineal descendants of the original testator; it was held, that though such brothers and sisters, and their children, were collateral heirs of the [479]*479daughter, they took under the will of the father, by virtue of the power of appointment; and that the estate was, not liable to the collateral inheritance tax. Com. v. Williams, 1 Harris, 29. Where a testatrix, reciting that A. was indebted to her on bond, declared that in case he made no demand against her estate for boarding or services rendered her, she bequeath him the debt due by him, and directed her executors to cancel the bond: this legacy is subject to the tax on collateral inheritances. Tyson's Appeal, 10 Barr, 220.