Miller, J.:
The fact that the decedent died a resident of this State was adjudged at the suit of this respondent, upon whose petition this proceeding was instituted. The will itself provided that the residue of the California property was to be remitted to the New York executor ; and though styled aii ancillary executor, the respondent is in fact a domiciliary executor. While the proceeding is instituted by one styled an ancillary administrator, because the interested parties having control of the matter saw fit to prove the will in California, any tax assessed will be based on the intestate laws of this State, the trusts attempted to be created by the will having been declared invalid.
If the order of the learned surrogate is right, this State may be precluded by a proceeding in another jurisdiction, to which it was a stranger, from assessing a tax imposed by its laws upon an estate which in law devolved according to its laws, and from collecting it out of property over which and from an executor over whom its courts have exclusive jurisdiction, although the tax is imposed not upon property but upon the transfer of it, and although the decree said to have, the effect of barring this State is not even proved.
When asked to give full faith and credit to judicial proceedings of another State, we are at least entitled to know what these proceedings were; but this record will be searched in vain for proof of any decree of the courts of ‘California, to say nothing of any decree even purporting to bar the claim of .the State of New York for a transfer tax. All we have are assertions and allegations on information and belief of conclusions* respecting the effect of the proceedings in California. If we had before us exemplified copies of those proceedings we might discover that the imposition of a tax by this State did not deny full faith and credit-to them. I assume that, in view of the mass of work, which the surrogates of New York county have to dispose.of, appeals in transfer.tax cases [386]*386have .to be decided as a rule upon submitted papers. But that does not'justify a party in invoking the full faith and. credit clause of the Constitution of the United States (Art. 4, § 1) upon bare allegations óf conclusions upon information and belief., The least that this respondent could have done was to annex to it's papers exemplified & copies of the proceedings and decrees for which faith and .credit | were claimed; and until such proof was made it was not incumbent I upon tlie State Comptroller either to attack file jurisdiction of thel • California court or to prove the California law.
In the case of Tilt v. Kelsey (207 U. S. 43); -which is said to be conclusive of this appeal, it. was stipulated that the appeal to the surrogate be submitted upon the proofs filed upon the coming in of the appraiser’s report and upon the affidavit of an attorney, which it was agreed sufficiently showed the record of the proceedings, the ■ accounting of the executors and the decrees: of the Hew Jersey courts. There was- no such stipulation in this ease.'
But assuming that the legal rights of this State may be defeated \ upon the bare assertion on information and belief of somebody’s/ conclusion respecting the effect of foreign decrees, there are two \ ■important distinctions between this and -the Tilt case. It is not/ pretended in' this case that the order for distribution was, preceded by an order forever barring all claims not presented to the executor, and the decree of distribution-as alleged was simply of the California property, hot of the entire estate of the decedent.
As I read the opinion of the court in the Tilt case, it was decided: First. That .the adjudication respecting domicilé was,not binding upon anybody not a 1 party to the proceeding. Second. That proceedings for the probate of wills and for the administration- and distribution of the estates of decedents are; proceedings i/n rem. Third, That such proceedings - in their effect upon the res before the. court are binding on all-the world to- the: extent that they are conclusive within the jurisdiction vvhere held. Fourth'. That upon the proof of the New Jersey'law; meagre and unsatisfactory though it was, the decree in that case barring all claims not presented, followed by a decree directing final distribution of the entire estate, involved a distribution of the estate freed from all demands, including that of New York State for taxes, and the exoneration of the executor therefor; that-those decrees were conclusive in [387]*387New Jersey upon all the world and that, therefore, the assessment of a tax by New York State denied them full faith and credit. Fifth. That it was assumed below that the proceedings in Hew Jersey were duly had, and that the taxes ás assessed were based on the provisions of the will, which derived its authenticity and its capacity to transmit property from the judicial proceedings in'Hew Jersey; wherefore, the jurisdiction of the Hew Jersey courts could not for the first time be attacked on appeal, although the fact of residence Was relevant to that question — indeed, it was stated earlier in the opinion that an adjudication of residence was essential to the assumption of. jurisdiction.
Whatever the decrees in that case might import, according to the glimpse of the Hew Jersey law which the court was permitted-to have, a decree for distribution not of the entire estate, but of a part only, and not preceded by a decree forever barring all demands, does not in and of itself bar the demands of non-residents. The California courts undoubtedly had jurisdiction to administer the California property in either original or ancillary proceedings; and it seems to me wholly immaterial whether the proceeding was in fact styled ancillary or original, unless rights are to be affected by a mere use of words. The fact is that the domiciliary administration in this case is in the State of New York, and that fact could not be changed by an adjudication in California of the decedent’s residence there, which, as was pointed out in the Tilt case, isi not binding on strangers to the record. The administration in*¡ California, whether styled original or ancillary, whether based on adjudication of residence or non-residence, was governed no doubt by the laws of California, independently of the New York administration. Of course, the adjudication of residence might affect the ultimate distribution — a point which I shall presently notice. The important facts now to be noted are, that the California courts only assumed to administer and decree disti’ibution of the California property; that such administration was in fact of the property of a non-resident tif California, and that it is wholly immaterial that the California courts assumed to administer the property- as that of a resident.
In Borer v. Chapman (119 U.S. 587) the entire estate of a nonresident decedent was distributed in California pursuant to an ancil[388]*388lary administration there, but the United States Supreme Court decided that such proceedings did not bar the claim- of a' non-resident creditor and that he could reach the assets' of' the estate ■ in the State of the decedent’s domicile, whether originally found there or brought there from California by the executor or legatees. A fortiori,
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Miller, J.:
The fact that the decedent died a resident of this State was adjudged at the suit of this respondent, upon whose petition this proceeding was instituted. The will itself provided that the residue of the California property was to be remitted to the New York executor ; and though styled aii ancillary executor, the respondent is in fact a domiciliary executor. While the proceeding is instituted by one styled an ancillary administrator, because the interested parties having control of the matter saw fit to prove the will in California, any tax assessed will be based on the intestate laws of this State, the trusts attempted to be created by the will having been declared invalid.
If the order of the learned surrogate is right, this State may be precluded by a proceeding in another jurisdiction, to which it was a stranger, from assessing a tax imposed by its laws upon an estate which in law devolved according to its laws, and from collecting it out of property over which and from an executor over whom its courts have exclusive jurisdiction, although the tax is imposed not upon property but upon the transfer of it, and although the decree said to have, the effect of barring this State is not even proved.
When asked to give full faith and credit to judicial proceedings of another State, we are at least entitled to know what these proceedings were; but this record will be searched in vain for proof of any decree of the courts of ‘California, to say nothing of any decree even purporting to bar the claim of .the State of New York for a transfer tax. All we have are assertions and allegations on information and belief of conclusions* respecting the effect of the proceedings in California. If we had before us exemplified copies of those proceedings we might discover that the imposition of a tax by this State did not deny full faith and credit-to them. I assume that, in view of the mass of work, which the surrogates of New York county have to dispose.of, appeals in transfer.tax cases [386]*386have .to be decided as a rule upon submitted papers. But that does not'justify a party in invoking the full faith and. credit clause of the Constitution of the United States (Art. 4, § 1) upon bare allegations óf conclusions upon information and belief., The least that this respondent could have done was to annex to it's papers exemplified & copies of the proceedings and decrees for which faith and .credit | were claimed; and until such proof was made it was not incumbent I upon tlie State Comptroller either to attack file jurisdiction of thel • California court or to prove the California law.
In the case of Tilt v. Kelsey (207 U. S. 43); -which is said to be conclusive of this appeal, it. was stipulated that the appeal to the surrogate be submitted upon the proofs filed upon the coming in of the appraiser’s report and upon the affidavit of an attorney, which it was agreed sufficiently showed the record of the proceedings, the ■ accounting of the executors and the decrees: of the Hew Jersey courts. There was- no such stipulation in this ease.'
But assuming that the legal rights of this State may be defeated \ upon the bare assertion on information and belief of somebody’s/ conclusion respecting the effect of foreign decrees, there are two \ ■important distinctions between this and -the Tilt case. It is not/ pretended in' this case that the order for distribution was, preceded by an order forever barring all claims not presented to the executor, and the decree of distribution-as alleged was simply of the California property, hot of the entire estate of the decedent.
As I read the opinion of the court in the Tilt case, it was decided: First. That .the adjudication respecting domicilé was,not binding upon anybody not a 1 party to the proceeding. Second. That proceedings for the probate of wills and for the administration- and distribution of the estates of decedents are; proceedings i/n rem. Third, That such proceedings - in their effect upon the res before the. court are binding on all-the world to- the: extent that they are conclusive within the jurisdiction vvhere held. Fourth'. That upon the proof of the New Jersey'law; meagre and unsatisfactory though it was, the decree in that case barring all claims not presented, followed by a decree directing final distribution of the entire estate, involved a distribution of the estate freed from all demands, including that of New York State for taxes, and the exoneration of the executor therefor; that-those decrees were conclusive in [387]*387New Jersey upon all the world and that, therefore, the assessment of a tax by New York State denied them full faith and credit. Fifth. That it was assumed below that the proceedings in Hew Jersey were duly had, and that the taxes ás assessed were based on the provisions of the will, which derived its authenticity and its capacity to transmit property from the judicial proceedings in'Hew Jersey; wherefore, the jurisdiction of the Hew Jersey courts could not for the first time be attacked on appeal, although the fact of residence Was relevant to that question — indeed, it was stated earlier in the opinion that an adjudication of residence was essential to the assumption of. jurisdiction.
Whatever the decrees in that case might import, according to the glimpse of the Hew Jersey law which the court was permitted-to have, a decree for distribution not of the entire estate, but of a part only, and not preceded by a decree forever barring all demands, does not in and of itself bar the demands of non-residents. The California courts undoubtedly had jurisdiction to administer the California property in either original or ancillary proceedings; and it seems to me wholly immaterial whether the proceeding was in fact styled ancillary or original, unless rights are to be affected by a mere use of words. The fact is that the domiciliary administration in this case is in the State of New York, and that fact could not be changed by an adjudication in California of the decedent’s residence there, which, as was pointed out in the Tilt case, isi not binding on strangers to the record. The administration in*¡ California, whether styled original or ancillary, whether based on adjudication of residence or non-residence, was governed no doubt by the laws of California, independently of the New York administration. Of course, the adjudication of residence might affect the ultimate distribution — a point which I shall presently notice. The important facts now to be noted are, that the California courts only assumed to administer and decree disti’ibution of the California property; that such administration was in fact of the property of a non-resident tif California, and that it is wholly immaterial that the California courts assumed to administer the property- as that of a resident.
In Borer v. Chapman (119 U.S. 587) the entire estate of a nonresident decedent was distributed in California pursuant to an ancil[388]*388lary administration there, but the United States Supreme Court decided that such proceedings did not bar the claim- of a' non-resident creditor and that he could reach the assets' of' the estate ■ in the State of the decedent’s domicile, whether originally found there or brought there from California by the executor or legatees. A fortiori, a California decree of distribution only of the' California property of a-decedent in fact' domiciled in New York would not -bar non-resident creditors from asserting their claims in the State of New York or affect the right of the State of New York to assess a tax upon the estate as that of a resident of N ew York.
"Within the doctrine of the Tilt case the California decree was | conclusive only in its effect upon the res. By it the distributee got title to the res, good as against any one claiming as distributee; and • we are indebted to the respondent for proof showing that that is precisely the effect which the law of California accords to such a decree. The three cases cited on the point are William Hill Co. v. Lawler (116 Cal. 359); Toland v. Earl (129 id. 148), and Goodrich v. Ferris. (145 Fed. Rep. 844). They hold, not as con-] tended, that such a decree is binding on all the world, but simply that it is binding on.“ heirs, legatees or devisees;” and in the opinion in the first case cited the statute thus limiting the conclusive, effect of such a decree is quoted: ^
In assessing a tax upon the estate according to its laws, the State z of New York does not dispute the title-of the California distributee.
It so happens that he is the person who takes under bur intestate laws. But I attach no importance to that fact. The tax is to be | determined as of the, decedent’s death, when the transfer occurs.|j The decedent being a resident of this State, the -succession upon his j death was according to our laws, and the right of the State of Hew | York to a tax then accrued ; the assessment and collection of it 1 only were postponed. The interested parties might see fit to. make actual distribution in some other manner, as they might seek administration and distribution in some other State, on the. theory of the decedent’s residence there; but it seems to me that such evasion of \ our laws could not gain sanction from a judicial decree thus procured, and that the right of the State accruing upon the decedent’s death could not be affected by the subsequent acts of the parties or by proceedings in another jurisdiction to which the State was not a [389]*389party. The distinction must not' be lost sight of between the transfer in law as of the decedent’s death, which determines the right of the State to a tax, and the actual fact of distribution subsequent thereto procured by the act of the parties, whether with or without judicial proceedings. As already indicated, the finding of residence in California and the conclusion based thereon, that the personal estate was distributable according to the laws of California, are not binding on the State in this proceeding. All that must be admitted is the actual fact of distribution, which, as said, does not in and of itself affect the right to a tax previously accrued. In' ordei’ successfully to invoice the full faith and credit clause of the Federal Constitution, the respondent was bound to prove a judicial proceeding in California having the effect to bar the claim of this State; and it utterly failed to do that.
The Comptroller is not seeking to affect the title or the status of the res distributed under the California decree nor is he attempting to impose a liability on the California executor. Of course, he does not claim that the order imposing the tax- will create a lien on property in California or impose a liability on a citizen of California not a party to this proceeding. He merely asks that the laws of this State be enforced; that an order be entered fixing the tax which accrued to the State upon the death of the decedent. He will, of course, have to collect that tax from some person over whom, or ■from some property over which the courts of this State have jurisdiction. We need have no fear lest injustice will result, for we may be reasonably certain that estates of decedents who were domiciled in this State are not administered elsewhere without a motive. If those interested allow that to be done they must not complain when the State undertakes to collect the tax imposed by its laws from any property of the estate which it can find within its jurisdiction.
In view of the importance of this matter to the State and of the way the records in these cases appear to be made, it may not be out of place to call attention to what the representative of the Comptroller ought to prove when the assessment of a tax is opposed on grounds like those now asserted. Obviously, the law of the foreign jurisdiction ought to be proved; and it ought to be shown whether the tribunal for whose decrees faith and credit are claimed [390]*390had jurisdiction to bar this State from assessing a tax according to its own laws upon the estates of its own citizens.
I apprehend that, it will be found to be a universal rule that the personal estates of decedents," wherever situated, devolve according ■to the law of the decedent’s domicile, and that the.courts of no State have or assume to exercise jurisdiction to administer such estates regardless of that law. Jurisdiction of the property and ] jurisdiction to administer the estate as that of a resident decedent are very' different,' and the finding of a jurisdictional fact is not conclusive. Jurisdiction to bar another State from assessing a transfer tax would certainly depend upon the fact of residence. Of ' course, if the property devolved according to the law of its actual situs, regardless of the residence of the decedent, the State of the domicile could not assess a tax for the reason that the transfer would not be under its laws. Whether the final distribution of the estate of a non-resident in a given State is decreed there, or whether the residue, after payment of expenses, local creditors and possibly local distributees and the like is remitted to the State of the decedent’s domicile will depend on considerations of comity; but the important question here is whether the final distribution, wherever made, is according to the local law or that of the decedent’s domi- • cile. If tlie law.of the domicile controls, the jurisdiction would be ' limited to administering, the particular property and to decreeing distribution according to- the law of the domicile or to remitting the residue .to the domiciliary representative, and there would be no. jurisdiction to bar non-resident creditors from asserting their claims in the State of the decedent’s domicile, and. certainly none to bar the claim for taxes of the State of such domicile. •
A little industry would have enabled the representative of the Comptroller in this case to show that the jurisdiction of the probate courts of California over the estates of non-residents located there is both original and ancillary (California Code Civ. Proc. §§ 1294-16675; that the jurisdiction of said courts is statutory (Smith v. Westerfield, 83 Cal. 374; Estate of Strong, 119 id. 663); that personal estates devolve according to the law of the decedent’s domicile (Estate of Apple, 66 Cal. 432; McCully v. Cooper, 114 id. 258; Murphy v. Crouse, 135 id. 14); that the courts of California i will even hold a domiciliary executor responsible.for not reducing |
[391]*391foreign assets to liis possession where he may (Matter of Ortiz, 86 / Cal. 306; 24 Pac. Rep. 1034); that the statute-which provides that * certain claims not presented and proved will he barred only appliesl to claims arising upon contracts against the decedent (California Code Civ. Proc. § 1493; Fallon v. Butler, 21 Cal. 24; Matter of Rowland, 74 id. 523; Finnerty v. Pennie, 100 id, 404); that it has been expressly held that claims for taxes assessed after the death of the decedent are not affected by proceedings for distribution of the estate (People v. Olvera, 43 id. 492); and, as already noted, that the decree for final distribution is conclusive only upon l “ heirs, legatees or devisees.” (California Code Civ. Proc. § 1666; Chever v. Ching Hong Poy, 82 Cal. 68.) (Under the California law the heir takes the personal estate.) Upon a little reflection it i will occur to any one that claims' for taxes and the like are not among the class that have to be presented and proved to the personal representative. It is his duty to pay them, the same as hé has to pay the expenses of administration, and he cannot evade that duty by getting a decree for distribution without performing it. They are, therefore, not among the class of claims affected by a final decree for distribution.
Of course we cannot take judicial notice of the statutes and i decisions above cited. I refer to them only to show what might have been proven, if in the limited time which I have been able to give the subject I have discovered and correctly discerned what the law of California is. However, if I am correct, the respondent wholly failed to make a case which called upon the representative of the Comptroller to make that proof. It view of the state of the record the proceedings should be remitted to the Surrogate’s Court.
The order should be reversed, with ten dollars costs and disbursements, and proceedings remitted to the Surrogate’s Court.
Clarke, Scott and Dowling, JJ., concurred; Ingraham, P. J., dissented.