Vaee, J.
The question presented by this appeal is whether Succession to the personal property of a non-resident intestate, invested or habitually kept by him in this state, is subject to taxation under the Collateral Inheritance Act.
The original act provided that after the passage thereof “ All property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same while being a resident of the state, or which property shall be within the state,” to any one other than certain excepted persons nearly related to the decedent, should be subject to a tax of five dollars upon the hundred “of the clear market-value of such property.” (Laws of 1885, chap. 483, § 1.) When this statute came before the courts for construction, it was held not to apply to property within the state, either real or personal, that passed by will or intestacy from a non-resident decedent to collateral relatives or strangers, and that it was limited in its effect to property so passing from resident decedents.
(Matter of Enston,
113 N. Y.
174; Matter of Tulane,
51 Hun, 213 ;
Matter of Clark,
9 N. Y. Supp. 444.) In 1887, however, the legislature amended the act so that it now provides that “all
property which shall pass by will or by the intestate laws of this.state, from any person who may die seized 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
death, which property, or any part thereof, shall be within this state,” etc. (Laws of 1887, chap. 713, § 1.) The part inserted by the amendment is italicised for convenience of comparison. What did the legislature wish to accomplish wheu it inserted these words
%
This question is not easily answered, for the section is so involved as to make the duty of discovering its meaning unusually difficult. Shortly after the original act was passed litigation arose over its provisions and the courts were called upon to discharge the delicate function of declaring what the confused and conflicting passages meant. The Surrogate’s Court and the Supreme Court held that the act, before it was amended, applied to the estates of non-resident decedents, and when the question reached the Court of Appeals two of its judges were of the same opinion, but a majority thought otherwise and the construction of the lower courts was overturned.
(Matter of
Enston, 5 Dem. 93 ;
S. C.,
46 Hun, 506;
S. C.,
113 N. Y. 174, 183.) Although the amendment of 1887 was probably passed in view of the litigation then pending, and with the inteiition of removing the doubt caused thereby, candid men are still compelled to hesitate and divide in pronouncing judgment.
It must be assumed that the legislature in passing the amendment intended to make some change, and the expression
“
or if such decedent was not a resident of this state at the time of death ” suggests what that change was. Before it was amended the act, as was subsequently held, applied only to one class of persons, resident decedents, but by the amendment it is made applicable to another class, non-resident decedents. But does it apply to all persons belonging to these two classes ? It is not denied that it applies to all resident decedents, and to all non-resident testators, but it is contended that it does not apply to non-resident intestates, because property “ which shall pass * * * by the intestate laws of this
state ” is expressly mentioned to the implied exclusion of property passing by the intestate laws of other states. This is the position of the appellant, whose learned counsel claims that the act, in its present form, was designed to meet cases of succession by will, but not of succession by intestacy, unless the intestate was a resident of this state It is difficult, however, to see why the legislature should discriminate simply for the purposes of taxation between the property of a non-resident decedent who made a will and of one who did not. It is not probable that there was an intention to tax the estates of non-resident testators and to exempt those of non-resident intestates, because there is no foundation for such a distinction.
(People ex rel. Westchester Fire Ins. Co.
v.
Davenport,
91 N. Y. 574, 585.) Property of the same kind, situated in the same place, receiving the same protection from the law, and administered upon in the same way, would naturally be required to contribute toward the expense of government upon the same basis, regardless of whether its last owner died testate or intestate. The language of the act, as amended, does not indicate the intention thus contended for, when the entire section is read together, because non-resident decedents are mentioned, while non-resident testators are not. Although “ the intestate laws of this state ” are named as a source of title, they are not the exclusive source, and neither necessarily nor naturally apply to the property of non-resident decedents named at a later point in the section. In this discussion it is assumed, as the appellant claims, that the personal property of such persons passes according to the laws of the state where they reside. By comparing the original with the amended act and analyzing the provisions of the latter in the light thus afforded, we think that the legislature intended by the fore part of the sentence under consideration, to provide for succession to the estates of residents, to which
“
the intestate laws of this state” apply; that after providing for that class a change is made, indicated by the use of the disjunctive particle
“
or,” which suggests a transition to another subject, and introduces another class, non-residents, who are also provided for,
and then each class is carried forward to the taxing clause, which embraces both. As thus construed, “ the intestate laws of this state ” have no application to the second class, being separated from it by the word “ or ” and confined to that clause of the sentence in which they occur. They are not repeated in the second clause, either literally or by implication, although the words “ all property ” in the first clause are repeated in the second in the form of “ which property; ” but no limitation is there applied to them. “ Which property,” as thus used, means the property of the non-resident decedent, and such property, if personal, would not pass by the intestate laws of this state. This construction is confirmed by referring to other portions of the act, which provide that “ all administrators, executors and trustees ” shall be hable for the taxes until paid (§ 1), and that “whenever any foreign executor or administrator shall assign or transfer any
stocks or looms
in this state, standing in the name of a decedent,” the tax shall be paid to the proper officer on such transfer, or the corporation permitting it shall become liable to pay the tax, provided it had knowledge of the facts in time. (§ 11.) It is clear that the act is not confined to real estate, but embraces personal property also, including evidences of debt. All administrators are made hable for the tax, and corporations can transfer stock standing upon their books in the name of a non-resident decedent only at their peril until the tax thereon is paid. The fiction of law that personal estate has no
situs
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Vaee, J.
The question presented by this appeal is whether Succession to the personal property of a non-resident intestate, invested or habitually kept by him in this state, is subject to taxation under the Collateral Inheritance Act.
The original act provided that after the passage thereof “ All property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same while being a resident of the state, or which property shall be within the state,” to any one other than certain excepted persons nearly related to the decedent, should be subject to a tax of five dollars upon the hundred “of the clear market-value of such property.” (Laws of 1885, chap. 483, § 1.) When this statute came before the courts for construction, it was held not to apply to property within the state, either real or personal, that passed by will or intestacy from a non-resident decedent to collateral relatives or strangers, and that it was limited in its effect to property so passing from resident decedents.
(Matter of Enston,
113 N. Y.
174; Matter of Tulane,
51 Hun, 213 ;
Matter of Clark,
9 N. Y. Supp. 444.) In 1887, however, the legislature amended the act so that it now provides that “all
property which shall pass by will or by the intestate laws of this.state, from any person who may die seized 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
death, which property, or any part thereof, shall be within this state,” etc. (Laws of 1887, chap. 713, § 1.) The part inserted by the amendment is italicised for convenience of comparison. What did the legislature wish to accomplish wheu it inserted these words
%
This question is not easily answered, for the section is so involved as to make the duty of discovering its meaning unusually difficult. Shortly after the original act was passed litigation arose over its provisions and the courts were called upon to discharge the delicate function of declaring what the confused and conflicting passages meant. The Surrogate’s Court and the Supreme Court held that the act, before it was amended, applied to the estates of non-resident decedents, and when the question reached the Court of Appeals two of its judges were of the same opinion, but a majority thought otherwise and the construction of the lower courts was overturned.
(Matter of
Enston, 5 Dem. 93 ;
S. C.,
46 Hun, 506;
S. C.,
113 N. Y. 174, 183.) Although the amendment of 1887 was probably passed in view of the litigation then pending, and with the inteiition of removing the doubt caused thereby, candid men are still compelled to hesitate and divide in pronouncing judgment.
It must be assumed that the legislature in passing the amendment intended to make some change, and the expression
“
or if such decedent was not a resident of this state at the time of death ” suggests what that change was. Before it was amended the act, as was subsequently held, applied only to one class of persons, resident decedents, but by the amendment it is made applicable to another class, non-resident decedents. But does it apply to all persons belonging to these two classes ? It is not denied that it applies to all resident decedents, and to all non-resident testators, but it is contended that it does not apply to non-resident intestates, because property “ which shall pass * * * by the intestate laws of this
state ” is expressly mentioned to the implied exclusion of property passing by the intestate laws of other states. This is the position of the appellant, whose learned counsel claims that the act, in its present form, was designed to meet cases of succession by will, but not of succession by intestacy, unless the intestate was a resident of this state It is difficult, however, to see why the legislature should discriminate simply for the purposes of taxation between the property of a non-resident decedent who made a will and of one who did not. It is not probable that there was an intention to tax the estates of non-resident testators and to exempt those of non-resident intestates, because there is no foundation for such a distinction.
(People ex rel. Westchester Fire Ins. Co.
v.
Davenport,
91 N. Y. 574, 585.) Property of the same kind, situated in the same place, receiving the same protection from the law, and administered upon in the same way, would naturally be required to contribute toward the expense of government upon the same basis, regardless of whether its last owner died testate or intestate. The language of the act, as amended, does not indicate the intention thus contended for, when the entire section is read together, because non-resident decedents are mentioned, while non-resident testators are not. Although “ the intestate laws of this state ” are named as a source of title, they are not the exclusive source, and neither necessarily nor naturally apply to the property of non-resident decedents named at a later point in the section. In this discussion it is assumed, as the appellant claims, that the personal property of such persons passes according to the laws of the state where they reside. By comparing the original with the amended act and analyzing the provisions of the latter in the light thus afforded, we think that the legislature intended by the fore part of the sentence under consideration, to provide for succession to the estates of residents, to which
“
the intestate laws of this state” apply; that after providing for that class a change is made, indicated by the use of the disjunctive particle
“
or,” which suggests a transition to another subject, and introduces another class, non-residents, who are also provided for,
and then each class is carried forward to the taxing clause, which embraces both. As thus construed, “ the intestate laws of this state ” have no application to the second class, being separated from it by the word “ or ” and confined to that clause of the sentence in which they occur. They are not repeated in the second clause, either literally or by implication, although the words “ all property ” in the first clause are repeated in the second in the form of “ which property; ” but no limitation is there applied to them. “ Which property,” as thus used, means the property of the non-resident decedent, and such property, if personal, would not pass by the intestate laws of this state. This construction is confirmed by referring to other portions of the act, which provide that “ all administrators, executors and trustees ” shall be hable for the taxes until paid (§ 1), and that “whenever any foreign executor or administrator shall assign or transfer any
stocks or looms
in this state, standing in the name of a decedent,” the tax shall be paid to the proper officer on such transfer, or the corporation permitting it shall become liable to pay the tax, provided it had knowledge of the facts in time. (§ 11.) It is clear that the act is not confined to real estate, but embraces personal property also, including evidences of debt. All administrators are made hable for the tax, and corporations can transfer stock standing upon their books in the name of a non-resident decedent only at their peril until the tax thereon is paid. The fiction of law that personal estate has no
situs
away from the person or residence of its owner is done away with, to a limited extent and for a specified purpose, and the truth is substituted in its stead as the rule of action. That the legislature had the power to do this can hardly be questioned.
(Matter of
McPherson, 104 N. Y. 306.) As was said by Judge Stoky, when writing upon this subject: “A nation within whose territory any personal property is actually situated has as entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situated there.” (Conflict of Laws, § 550.) In
People ex rel. Hoyt
v.
Commissioners of Taxes
(23 N. Y. 224, 228), Judge Comstock
quotes with approval the foregoing extract, and adds: “ I can think of no more just and appropriate exercise of the sovereignty of a state or nation over property situated within it and protected by its laws, than to compel it to contribute toward the maintenance of government and law. Accordingly there seems to be no place for the fiction of which we are speaking
(mobilia personam sequantar),
in a well-adjusted system of taxation.” (See, also,
Guillander
v. Howell, 35 N. Y. 657;
Graham
v.
First National Bank of
Norfolk, 84 id. 393, 401 ;
Catlin
v.
Hull,
21 Vt. 152; Dos Passes on Collateral Inheritance, 37, 92.)
Oreutt's Appeal
(97 Penn. St. 179), is pressed upon our attention as opposed to the views here expressed, but that case was decided under a statute differing materially from the one under consideration. ■ (Purd. Dig. vol. 1, 259.) The main point of contention there was whether United States bonds, no matter where deposited, had a
situs
different from the domicile
of
their owner, and it was held that they had not, by the act then under review, which was declared “ to embrace only personal property of a tangible nature, actually situated or used for business purposes within the commonwealth, and not to mere certificates of indebtedness, such as government bonds.”
It was held otherwise by the Court of Appeals of Maryland in
State
v.
Dalrymple
(70 Md. 294), where the words “ being in this state ” were declared to refer to the actual and not to the constructive situation of the property.
In
Alvany
v.
Powell
(2 Jones Eq. 51) it was held that property, whether real or personal, situate in the state of North Carolina, but belonging to one domiciled and dying intestate in Canada, was subject to the succession tax imposed by a statute of said state.
When the
Matter of Enston (supra)
was before this court the amendment of 1887 had been passed, but it did not apply to the facts of that case, because they arose prior to its passage, although the decision was made afterward. Still the amendment was considered in the prevailing opinion which stated
(p. 184) that “by chapter 713 of the Laws of 1887, section 1 of the act of 1885 was so amended as to subject to its operation the property within this state of a non-resident decedent; and this amendment furnishes some evidence that prior thereto the proper construction of the section, according to the understanding of the legislature, did not include within its operation such property.” In the dissenting opinion reference was made to the same subject in this way (p. 184): “ Under either statute (the original and the amendment) the clear intention was to bring in for taxation all property, real and personal, without regard to residence, which was within the jurisdiction of the courts of this state, and to be administered under its laws for the beneficiaries named in the act, subject only to the exceptions named in the act itself.” All of the property in question has been administered upon in this state alone. There, appeared to be no difference in the ininds of the six judges who took part in the decision as to the effect of the amend- ' ment 'of 1887. Apparently, they were all of the opinion, as the most of those participating in this decision are, that by the change then made the act applied to the property within this state of any non-resident decedent.
The appellant further contends that the property in question was not “ within this state,” according to the true meaning of the statute, and the contention is supported by the argument that it would be unreasonable to tax money found upon the person of a non-resident who died while traveling in this state. We should hesitate before applying the statute to any property casually brought into the state for a temporary purpose, as by a visitor or traveler, but the record before us does not present such a case. It might well be held that such property, although literally “ within this state,” wa£ not here in the sense meant by the statute, on account of the transitory and accidental character qf its presence and the immediate custody of the owner.
(Herron, Treasurer,
v.
Keeran,
59 Ind. 472, 476.) Where, however, the money of a non-resident is invested in this state, as it was by Mr. Bomaine in the bond and mortgage in question, and in the deposits
made by Mm in the savings banks, or where the property of a non-resident is habitually kept, even for safety, in this state, we think that the statute applies both in the letter and spirit. Such property is within this state in every reasonable sense, receives the protection of its laws and has every advantage from government, for the support of which taxes are laid, that it would have if it belonged to a resident. We tMnk that a fair construction of the act permits no distinction as to such property, based simply upon the residence of the deceased owner. We have nothing to do with the policy of the statute, as our duty is discharged when we declare its meaning and apply it to the case in hand. That duty we discharge in this instance by adjudging that succession to the personal property in question, lately belonging to Worthington Eomaine, a nonresident intestate, but invested or habitually kept by him in this state, is taxable under the Collateral Inheritance Act, in so far as it passed to persons not excepted from its provisions.
The orders should be affirmed, with costs.