Opinion by
Mb. Justice Sterbett,
All the facts, bearing upon the questions involved in this contention, are fully presented in the case-stated for the opinion of the court below, and hence a detailed reference to them is unnecessary.
It appears that the testator, George Small, a citizen of Maryland and resident of Baltimore, at and before the time of his decease in April, 1891, owned a large amount of real estate, some personal property and a one third interest in the limited partnership association of “P. A. & S. Small, Limited,” located in York county, Pa. That association was formed in May, 1887, by the testator and his brothers, W. Latimer Small and Samuel Small, under our act of June, 1874, and supplements, Avitli a paid-in capital of $450,000, divided into four hundred and fifty shares, one third of Avhich was owned by each. The capital consisted of eleven tracts of land, situated in said county, valued at $190,500, personal property, valued at $240,300, etc. The association’s place of business, as well [12]*12its principal office, was at York, Pa. The partnership articles contain a provision securing to the association the first right to purchase the whole or any part of the interest of any member, wishing to dispose thereof, at as low a price as he is willing to sell the same for to any outside party.
George Small, as above stated, was a citizen of Maryland. The other partners were citizens of Pennsylvania, residing in York, Pa. The business, consisting largely in buying and selling grain, flour, merchandise, etc., in Pennsylvania and elsewhere, 'amounting to over one million dollars annually, was continued without change of membership until the death of George Small. He bequeathed all his interest in the association, including “all the property real and personal, notes, stocks, bonds and accounts,” to his two partners aforesaid.
Letters testamentary were granted by the orphans’ court of Baltimore to W. Latimer Small, Samuel Small and James W. Latimer, executors named in the will. Ancillary letters were issued to same executors by the register of York county. The inventory filed in Baltimore included the testator’s interest (150 shares capital stock) in “ P. A. & S. Small, Limited,” but that filed in York county did not. That interest, however, was appraised for collateral inheritance tax, by direction of the register of York county, and therefrom an appeal was taken by the legatees, W. Latimer Small and Samuel Small.
Testator’s widow having, in the meantime, elected not to take under his will, etc., an amicable agreement was thereupon entered into between her, the executors, legatees and devisees, by which she received $380,000, in cash, stocks, bonds and a conveyance of real estate in Baltimore, valued at $40,000, in full of all claims on the estate, etc. In consideration thereof, she in due form released and confirmed unto W. Latimer Small and Samuel Small her dower interest in all other lands of her deceased husband, assigned to them her distributive interest in his estate and released the executors from all claims and demands.
The case-stated, reciting at length all the material facts, including those above outlined, was agreed upon by the parties and submitted to the orphans’ court for its decision. The general question presented by it is, whether the interest in said partnership association, held by the testator at the time of his [13]*13decease, viz., 150 shares capital stock valued at $150,000, or any part thereof, was subject to the payment of collateral inheritance tax under the laws of this state ?
On the main question, without reference to the action of testator’s widow, the learned judge of the orphans’ court reached the conclusion that testator’s interest in the partnership was personal property situated in York county and therefore taxable ; but, inasmuch as Mrs. Small refused to accept the provisions of the will, and elected to claim one half of the personal estate under the intestate law, he held that one half only of said interest was subject to collateral inheritance tax. He accordingly entered a decree in favor of the Commonwealth for $3,750, being 5 per centum on one half the value of said interest. Both parties appealed. On behalf of the Commonwealth it is claimed the court erred in not holding that the whole of said interest is taxable, notwithstanding the action of the widow. On the other hand, the legatees claim that no part of said interest is taxable. Both appeals were argued together, and will be disposed of in same manner.
Our act of May 6, 1887, P. L. 79, which is mainly a compilation of former acts and declaratory of the law as theretofore construed by this court, etc., declares that “ all estates, real, personal and mixed, of every kind whatsoever, situated within this state, whether the person or persons dying seized thereof be domiciled within or out of this state, and all such estates, situated in another state, territory or country, when the person or persons dying seized thereof shall have their domicile within this commonwealth, passing from anyperson who may die seized or possessed of such estates, either by will or under the intestate laws of this state,” etc., shall be subject to a tax.
There is some difference in phraseology between this and the first section of the original act of 1826. In describing the property intended to be made subject to payment of collateral inheritance tax and fixing the situs thereof, the latter reads thus: “ All estates, real, personal and mixed, of every kind whatsoever, passing from any person who may die seized or possessed of such estate, being within this commonwealth,” etc. Doubtless, the words, “ situated within this state, whether the person or persons dying seized thereof be domiciled within or out of this state,” were employed in the act of 1887 for the [14]*14purpose of more definitely fixing the situs, etc., of the property intended to be taxed.
The language of the testator’s bequest to his two brothers is, “ all my interest in the partnership association of ‘ P. A. & S. Small, Limited,’ and in all the property, real and personal, notes, stocks, bonds and accounts of said partnership association.”
If, according to the true intent and meaning of the act of 1887, the “interest,” thus bequeathed, was property “situated within this state,” it is clearly subject to collateral inheritance tax. We are unable to understand why it was not. The partnership property was largely made up of lands, merchandise, flour, grain and other personal property which had a visible and tangible existence and an actual situs in this state. As was said by Comstock, C. J., in Hoyt v. Comrs., 23 N. Y. 224, 228, “ the fiction or maxim, mobilia personam sequuntur, is by no means of universal application. Like other fictions, it has its special uses. It may be resorted to when convenience and justice requires. In other circumstances, the truth and not the fiction affords, as it plainly ought to afford, the rule of action. ... 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.” “A nation within whose territory any personal property is actually situated, has an entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situated there: ” Story’s Confl. of Laws, § 550.
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Opinion by
Mb. Justice Sterbett,
All the facts, bearing upon the questions involved in this contention, are fully presented in the case-stated for the opinion of the court below, and hence a detailed reference to them is unnecessary.
It appears that the testator, George Small, a citizen of Maryland and resident of Baltimore, at and before the time of his decease in April, 1891, owned a large amount of real estate, some personal property and a one third interest in the limited partnership association of “P. A. & S. Small, Limited,” located in York county, Pa. That association was formed in May, 1887, by the testator and his brothers, W. Latimer Small and Samuel Small, under our act of June, 1874, and supplements, Avitli a paid-in capital of $450,000, divided into four hundred and fifty shares, one third of Avhich was owned by each. The capital consisted of eleven tracts of land, situated in said county, valued at $190,500, personal property, valued at $240,300, etc. The association’s place of business, as well [12]*12its principal office, was at York, Pa. The partnership articles contain a provision securing to the association the first right to purchase the whole or any part of the interest of any member, wishing to dispose thereof, at as low a price as he is willing to sell the same for to any outside party.
George Small, as above stated, was a citizen of Maryland. The other partners were citizens of Pennsylvania, residing in York, Pa. The business, consisting largely in buying and selling grain, flour, merchandise, etc., in Pennsylvania and elsewhere, 'amounting to over one million dollars annually, was continued without change of membership until the death of George Small. He bequeathed all his interest in the association, including “all the property real and personal, notes, stocks, bonds and accounts,” to his two partners aforesaid.
Letters testamentary were granted by the orphans’ court of Baltimore to W. Latimer Small, Samuel Small and James W. Latimer, executors named in the will. Ancillary letters were issued to same executors by the register of York county. The inventory filed in Baltimore included the testator’s interest (150 shares capital stock) in “ P. A. & S. Small, Limited,” but that filed in York county did not. That interest, however, was appraised for collateral inheritance tax, by direction of the register of York county, and therefrom an appeal was taken by the legatees, W. Latimer Small and Samuel Small.
Testator’s widow having, in the meantime, elected not to take under his will, etc., an amicable agreement was thereupon entered into between her, the executors, legatees and devisees, by which she received $380,000, in cash, stocks, bonds and a conveyance of real estate in Baltimore, valued at $40,000, in full of all claims on the estate, etc. In consideration thereof, she in due form released and confirmed unto W. Latimer Small and Samuel Small her dower interest in all other lands of her deceased husband, assigned to them her distributive interest in his estate and released the executors from all claims and demands.
The case-stated, reciting at length all the material facts, including those above outlined, was agreed upon by the parties and submitted to the orphans’ court for its decision. The general question presented by it is, whether the interest in said partnership association, held by the testator at the time of his [13]*13decease, viz., 150 shares capital stock valued at $150,000, or any part thereof, was subject to the payment of collateral inheritance tax under the laws of this state ?
On the main question, without reference to the action of testator’s widow, the learned judge of the orphans’ court reached the conclusion that testator’s interest in the partnership was personal property situated in York county and therefore taxable ; but, inasmuch as Mrs. Small refused to accept the provisions of the will, and elected to claim one half of the personal estate under the intestate law, he held that one half only of said interest was subject to collateral inheritance tax. He accordingly entered a decree in favor of the Commonwealth for $3,750, being 5 per centum on one half the value of said interest. Both parties appealed. On behalf of the Commonwealth it is claimed the court erred in not holding that the whole of said interest is taxable, notwithstanding the action of the widow. On the other hand, the legatees claim that no part of said interest is taxable. Both appeals were argued together, and will be disposed of in same manner.
Our act of May 6, 1887, P. L. 79, which is mainly a compilation of former acts and declaratory of the law as theretofore construed by this court, etc., declares that “ all estates, real, personal and mixed, of every kind whatsoever, situated within this state, whether the person or persons dying seized thereof be domiciled within or out of this state, and all such estates, situated in another state, territory or country, when the person or persons dying seized thereof shall have their domicile within this commonwealth, passing from anyperson who may die seized or possessed of such estates, either by will or under the intestate laws of this state,” etc., shall be subject to a tax.
There is some difference in phraseology between this and the first section of the original act of 1826. In describing the property intended to be made subject to payment of collateral inheritance tax and fixing the situs thereof, the latter reads thus: “ All estates, real, personal and mixed, of every kind whatsoever, passing from any person who may die seized or possessed of such estate, being within this commonwealth,” etc. Doubtless, the words, “ situated within this state, whether the person or persons dying seized thereof be domiciled within or out of this state,” were employed in the act of 1887 for the [14]*14purpose of more definitely fixing the situs, etc., of the property intended to be taxed.
The language of the testator’s bequest to his two brothers is, “ all my interest in the partnership association of ‘ P. A. & S. Small, Limited,’ and in all the property, real and personal, notes, stocks, bonds and accounts of said partnership association.”
If, according to the true intent and meaning of the act of 1887, the “interest,” thus bequeathed, was property “situated within this state,” it is clearly subject to collateral inheritance tax. We are unable to understand why it was not. The partnership property was largely made up of lands, merchandise, flour, grain and other personal property which had a visible and tangible existence and an actual situs in this state. As was said by Comstock, C. J., in Hoyt v. Comrs., 23 N. Y. 224, 228, “ the fiction or maxim, mobilia personam sequuntur, is by no means of universal application. Like other fictions, it has its special uses. It may be resorted to when convenience and justice requires. In other circumstances, the truth and not the fiction affords, as it plainly ought to afford, the rule of action. ... 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.” “A nation within whose territory any personal property is actually situated, has an entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situated there: ” Story’s Confl. of Laws, § 550.
As a general rule, intangible personal property of a nonresident, such as bonds, mortgages and other choses in action, is governed, as to its situs, by the fiction of law above noticed, and hence such property is not subject to collateral inheritance taxation under our laws, because it is not “ situated within this state.”
In Orcutt’s Ap., 97 Pa. 179, the fund under consideration was proceeds of United States bonds deposited, temporarily for safe keeping in Philadelphia, by the testator, a citizen of New Jersey. Recognizing the general rule that the situs of personal property follows the domicile of its owner, and conceding the [15]*15well defined exceptions thereto, that when used in carrying on business and for other particular purposes, some species of personal property may have an actual situs distinct from the legal one, it was held that there was no reason in that case why either the bonds or their proceeds should, for any purpose, have a situs different from the owner’s domicile. The bonds were simply evidences of indebtedness, not by any person or corporation within the commonwealth, but by the general government. The facts of this case, however, are different and bring it within the exceptions to the fictitious rule. In the formation, location, etc., of their partnership association, the testator and his brothers evidently established the situs of the personal property which constituted its capital. They organized the association under the laws of this state, located its principal office and conducted its business therein and thus enjoyed the benefit of the law and protection of the state and local government. In such circumstances, as remarked in Hoyt v. Commissioners, supra, the truth and not the fiction plainly affords the rule of action. Neither convenience nor justice requires us to resort to the fictitious rule.
If the partnership association of P. A. & S. Small, Limited, had been a common law partnership, and the testator’s interest therein had been specifically bequeathed to his two brothers it undoubtedly would have been liable to collateral inheritance tax. There appears to be no good reason why the bequest should be exempt because it happens to be an interest in a limited partnership association. There is, of course, some difference in the two forms of partnership. In the one, the liability of members is general, in the other it is limited to the capital subscribed, and provision is made for selection of managers by whom the business is conducted in the name adopted by the association, etc., but there appears to be nothing in the mode of organization under the law nor in the manner of conducting the business that requires exemption of the tangible property of the one from payment of collateral inheritance tax, while that of the other is liable thereto.
For these and other reasons that might be suggested, we think the learned judge was right in concluding that the interest bequeathed to appellants was tangible personal property, having an actual situs within the state, receiving the benefit [16]*16and protection of its laws, during testator’s lifetime, and since, and therefore subject to payment of collateral inheritance tax.
But we think he erred in holding that only one half the value of said interest is taxable. As legatees under the will, appellants acquired and still hold title to the whole of testator’s interest in the partnership association. The widow’s claim under the intestate law was relinquished in consideration of the money, securities and property she received. In no event could she have successfully claimed any of the partnership property, in specie, nor any specific portion of the interest bequeathed by her husband to his brothers. She would have been entitled to one half of the residue of her husband’s personal estate, remaining after payment of all debts, expenses of administration, etc. That was never ascertained, because a compromise was effected and her claim under the intestate law was relinquished. The- entire interest specifically bequeathed to appellees was received, and, for aught that appears, is still held by them.
Decree reversed with costs to be paid by the appellees; and upon the case-stated it is now adjudged and decreed that W. Latimer Small, Samuel Small and James W. Latimer, executors of George Small, deceased, pay to the Commonwealth of Pennsylvania the sum of seven thousand five hundred dollars, with interest, etc.
Small’s Appeal.
Opinion by Mb. Justice Stebbett, October 3, 1892.
This contention arose upon the same state of facts as Commonwealth’s Appeal, in same estate, No. 247, January Term, 1892; and both cases were argued together. In an opinion just filed in that case, reversing the decree made on the case-stated, etc., we have said all that is necessary in relation to the question involved in this appeal. For reasons there given we think this appeal should be dismissed.
Appeal dismissed with costs to be paid by appellants.