Bliss, Judge,
delivered the opinion of the court.
The relator sued out of the Circuit Court of ,St. Louis county a writ of certiorari directed to the County Court, for the purpose of reviewing their action in assessing taxes upon property belonging to the estate represented by him. The proceedings were reviewed and the assessment set aside, whereupon the defendant appeals.
Counsel for appellant first contends that the writ will not lie to an action of this kind. The County Court of each county is directed (Wagn. Stat. 1174, § 51) to hear and determine allegations of erroneous assessment or mistakes in favor of those who have failed to go before the board of appeals, and the action of the court in the matter is clearly judicial in its character, and has always been so considered. This writ will therefore lie to review its action. (Marion County v. Phillips, 45 Mo. 75; In the matter of the Saline County Subscription, id. 52; St. Louis Mutual Life Ins. Co. v. Charles, ante, p. 462.)
The plaintiff showed to the County Court that the deceased was, at his death, a resident of Illinois; that he owned bonds due by the Masonic Hall Association of St. Louis, which were listed and taxed at his domicile in Illinois; that ancillary administration was taken out in St. Louis upon so much of the estate as is embraced in these bonds, and that the bonds were transferred to the possession of the St. Louis administrator for the purpose only of ancillary administration; yet the court held that these bonds, being actually in the hands of the St. Louis administrator, as belonging to the Missouri estate, were subject to taxation in St. Louis. The correctness of this decision is the only question for consideration.
Our statute makes no special mention of this description of property, but provides (Wagn. Stat. 1159, ch. 11, § 1) that taxes shall be levied ££ on all property, real and personal, except,” etc. Sections 7 and 8 exempt certain classes of notes [600]*600and bonds, but the exemption does not cover tho'se in controversy. The county authorities defend their assessment, as we have seen, upon the ground that these bonds are actually within the State and subject to its laws, while the relator claims that as personal property, and especially as choses in action, they follow the domicile of the owner, and can only be taxed at the place of such domicile.
It is evident they should not be assessed in both States, though an erroneous assessment in one State will not exempt them from a correct one in the other. We have no statute specially subjecting to taxation the bonds of our corporations wherever owned, and if they are liable at all, it is because they are here protected by our laws, and subject to the jurisdiction of our courts.
That the situs of personal property is the domicile of its owner, is a fiction, though color is given to its truth by the law in relation to the distribution of personal estates. If a citizen and resident of St. Louis own a farm in Illinois, no one pretends that the farm has any different location than if the owner lived upon it. But how with the cattle in its fields and stables, and the corn in its granaries ? On what principle can they be said to belong to Missouri, so long as they are upon the farm? There is this difference: they can be removed to Missouri, while the farm can not; but, until removed, their situs is the farm ; they help to swell the wealth of the locality; they are protected by its laws, and should be subject to its burdens. The same rule should be applied to bonds and notes, though from the different nature of the property their actual situs may be more doubtful. But, if it be established, although not the residence of their owner, the same result should follow as to them. Thus, if money be left by a non-resident in the hands of an agent for investment and loan, the money itself, the instruments taken for it, and the various forms which it assumes, so long as they remain in the hands of such agent, are local property, and upon every principle should be subject to the public burdens imposed upon other local property of the same kind. What difference does it make in the benefits derived by the owner from the protection afforded this property by the administration of the law, whether he live [601]*601near it or abroad? or what difference in the expense of such protection ?
This view has been recognized by all the courts, but I will refer to only a few cases. In Catlin v. Hall, 21 Verm. 152, one Hammond was a resident of New York, and had placed promissory notes in the hands of the plaintiff in Vermont as his agent, t'o collect, re-loan and manage for his benefit. They were assessed at the locality of the agent, and he brought suit to test the legality of the assessment, which was fully sustained by the court, upon the principle that the property was invested in the State, under the protection of its laws, and should contribute to the support of the .government which protects it. In The People v. Home Ins. Co., 29 Cal. 533, certain State bonds had been deposited by the defendant, a foreign corporation, as security for its liabilities, and were subjected to local taxation. The assessment was sustained, the court holding “the actual situs and control of the property Avithin the State to be the condition Avhich subjects it to taxation." The case of Hoyt v. Commissioners of Taxes, 23 N. Y. 224, arose out of an attempt to assess taxes against the OAvner, who was a resident of New York, upon his personal property in New Orleans. The Court of Appeals held the assessment as to tangible property to be illegal, but declined to give an opinion in regard to choses in action. But in the Supreme Court, in The People v. Gardner, 51 Barb. 352, it Avas held that a resident of New York Avas not liable to be assessed and taxed at his residence upon securities taken and held by his agents in other States. This court, so far as the question has come before us, has sustained the same vieAY; and in St. Louis v. Wiggins Ferry Co., 40 Mo. 580, Judge Holmes thus states the general doctrine: “The property of either a resident or non-resident is taxable here if it be found situate within the local jurisdiction, whether it be in the hands of the owner himself or of his agents.”
The only question, then, to be determined is whether the bonds belonging to the relator as administrator are so located in Missouri as to be taxable here, or Avhether they should be assessed at the residence of deceased. The fact that they have been once [602]*602assessed at the latter place cuts no figure, for the authorities at the true situs can not be thus deprived of jurisdiction.
In regard to the law governing the disposition of the property of a deceased person, our statute provides (Wagn. Stat. 115, ch. 125, § 24) that real estate shall descend according to the laws of its situs, and that personal property shall be distributed according to the laws of the domicile of docendent — thus embodying the existing law rather than declaring a new rule. This provision, it is claimed, should govern the location of the personal property of the estate for the purpose of taxation. If so, the rule should apply to all kinds of personal property, so that cattle, horses, steamboats, and buildings upon leased ground that may never have been within the jurisdiction of the State containing the domicile of decendent, could be alone taxed at that place. But the law upon this subject has no application to the question under consideration. In fixing the rights of distributees of property whose
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Bliss, Judge,
delivered the opinion of the court.
The relator sued out of the Circuit Court of ,St. Louis county a writ of certiorari directed to the County Court, for the purpose of reviewing their action in assessing taxes upon property belonging to the estate represented by him. The proceedings were reviewed and the assessment set aside, whereupon the defendant appeals.
Counsel for appellant first contends that the writ will not lie to an action of this kind. The County Court of each county is directed (Wagn. Stat. 1174, § 51) to hear and determine allegations of erroneous assessment or mistakes in favor of those who have failed to go before the board of appeals, and the action of the court in the matter is clearly judicial in its character, and has always been so considered. This writ will therefore lie to review its action. (Marion County v. Phillips, 45 Mo. 75; In the matter of the Saline County Subscription, id. 52; St. Louis Mutual Life Ins. Co. v. Charles, ante, p. 462.)
The plaintiff showed to the County Court that the deceased was, at his death, a resident of Illinois; that he owned bonds due by the Masonic Hall Association of St. Louis, which were listed and taxed at his domicile in Illinois; that ancillary administration was taken out in St. Louis upon so much of the estate as is embraced in these bonds, and that the bonds were transferred to the possession of the St. Louis administrator for the purpose only of ancillary administration; yet the court held that these bonds, being actually in the hands of the St. Louis administrator, as belonging to the Missouri estate, were subject to taxation in St. Louis. The correctness of this decision is the only question for consideration.
Our statute makes no special mention of this description of property, but provides (Wagn. Stat. 1159, ch. 11, § 1) that taxes shall be levied ££ on all property, real and personal, except,” etc. Sections 7 and 8 exempt certain classes of notes [600]*600and bonds, but the exemption does not cover tho'se in controversy. The county authorities defend their assessment, as we have seen, upon the ground that these bonds are actually within the State and subject to its laws, while the relator claims that as personal property, and especially as choses in action, they follow the domicile of the owner, and can only be taxed at the place of such domicile.
It is evident they should not be assessed in both States, though an erroneous assessment in one State will not exempt them from a correct one in the other. We have no statute specially subjecting to taxation the bonds of our corporations wherever owned, and if they are liable at all, it is because they are here protected by our laws, and subject to the jurisdiction of our courts.
That the situs of personal property is the domicile of its owner, is a fiction, though color is given to its truth by the law in relation to the distribution of personal estates. If a citizen and resident of St. Louis own a farm in Illinois, no one pretends that the farm has any different location than if the owner lived upon it. But how with the cattle in its fields and stables, and the corn in its granaries ? On what principle can they be said to belong to Missouri, so long as they are upon the farm? There is this difference: they can be removed to Missouri, while the farm can not; but, until removed, their situs is the farm ; they help to swell the wealth of the locality; they are protected by its laws, and should be subject to its burdens. The same rule should be applied to bonds and notes, though from the different nature of the property their actual situs may be more doubtful. But, if it be established, although not the residence of their owner, the same result should follow as to them. Thus, if money be left by a non-resident in the hands of an agent for investment and loan, the money itself, the instruments taken for it, and the various forms which it assumes, so long as they remain in the hands of such agent, are local property, and upon every principle should be subject to the public burdens imposed upon other local property of the same kind. What difference does it make in the benefits derived by the owner from the protection afforded this property by the administration of the law, whether he live [601]*601near it or abroad? or what difference in the expense of such protection ?
This view has been recognized by all the courts, but I will refer to only a few cases. In Catlin v. Hall, 21 Verm. 152, one Hammond was a resident of New York, and had placed promissory notes in the hands of the plaintiff in Vermont as his agent, t'o collect, re-loan and manage for his benefit. They were assessed at the locality of the agent, and he brought suit to test the legality of the assessment, which was fully sustained by the court, upon the principle that the property was invested in the State, under the protection of its laws, and should contribute to the support of the .government which protects it. In The People v. Home Ins. Co., 29 Cal. 533, certain State bonds had been deposited by the defendant, a foreign corporation, as security for its liabilities, and were subjected to local taxation. The assessment was sustained, the court holding “the actual situs and control of the property Avithin the State to be the condition Avhich subjects it to taxation." The case of Hoyt v. Commissioners of Taxes, 23 N. Y. 224, arose out of an attempt to assess taxes against the OAvner, who was a resident of New York, upon his personal property in New Orleans. The Court of Appeals held the assessment as to tangible property to be illegal, but declined to give an opinion in regard to choses in action. But in the Supreme Court, in The People v. Gardner, 51 Barb. 352, it Avas held that a resident of New York Avas not liable to be assessed and taxed at his residence upon securities taken and held by his agents in other States. This court, so far as the question has come before us, has sustained the same vieAY; and in St. Louis v. Wiggins Ferry Co., 40 Mo. 580, Judge Holmes thus states the general doctrine: “The property of either a resident or non-resident is taxable here if it be found situate within the local jurisdiction, whether it be in the hands of the owner himself or of his agents.”
The only question, then, to be determined is whether the bonds belonging to the relator as administrator are so located in Missouri as to be taxable here, or Avhether they should be assessed at the residence of deceased. The fact that they have been once [602]*602assessed at the latter place cuts no figure, for the authorities at the true situs can not be thus deprived of jurisdiction.
In regard to the law governing the disposition of the property of a deceased person, our statute provides (Wagn. Stat. 115, ch. 125, § 24) that real estate shall descend according to the laws of its situs, and that personal property shall be distributed according to the laws of the domicile of docendent — thus embodying the existing law rather than declaring a new rule. This provision, it is claimed, should govern the location of the personal property of the estate for the purpose of taxation. If so, the rule should apply to all kinds of personal property, so that cattle, horses, steamboats, and buildings upon leased ground that may never have been within the jurisdiction of the State containing the domicile of decendent, could be alone taxed at that place. But the law upon this subject has no application to the question under consideration. In fixing the rights of distributees of property whose situs is changeable, and may be under one jurisdiction at one time and elsewhere at another, the law of some locality must be chosen, and it is very proper to govern its distribution by the law known to the deceased. But the principles governing the question of taxation are, as we have seen, very different, and we are only required to ascertain the actual location of the property at the time of its assessment.
Administration of so much of the estate of a non-resident as is found within our jurisdiction is ancillary, in that it becomes the duty of the administrator to transmit to the representative of the estate of the domicile any balance remaining after full administration. Yet so far as local creditors and local distributees are concerned, the administration is complete. Until such balance be transmitted the local administrator has full possession of all the property, and the foreign administrator has no right to inter-meddle. In no sense can it be said to be in the possession of the foreign administrator, and it does not matter whether or not it may have been transmitted, or rather the evidence and representation of it, in the shape-of bonds and notes, from such administrator to the local one. When transmitted for the purpose of administration, it becomes a local estate, it comes within the [603]*603jurisdiction of the tribunals of the domicile of the local administrator, it seeks the protection of its laws and the enforcing process of its courts, and until the closing up of the local administration it can have no other situs.
Counsel for relator claims exemption of these bonds from local taxation because the law makes no special provision for taxing such securities, as is made by the Pennsylvania act under consideration in Maltby v. Reading & Col. R.R. Co., 52 Penn. St. 140, to which case we have been cited by appellant. In order to reach all the bonds of a corporation, if the policy were to assess them for taxation without reference to where they were held, a similar provision would be necessary. We have made such provision in relation to the stock of corporations, but leave bonds to be taxed like other property where they can be reached, except that if the owner resides within the State they shall be taxed in the county of his residence. (Gen. Stat. 1865, ch. 11, § 9 ; Wagn. Stat. 1161.)
The oath required of tax-payers by section 12, chapter 12, Gen. Stat. 1865 (Wagn. Stat. 1167), expressly requires the disclosure of property like that under consideration, “You do solemnly swear [or affirm] that you have given a true and correct list of all taxable property, including therein money, notes or bonds in hand or on deposit, owned by you, or under your charge or management,” etc. The fact that the property is held in trust creates no exemption, nor does it change its situs. We are referred to Stephens v. Mayor, etc., 34 Mo. 323 ; and it is true that within the State personal property is required by statute to be assessed at the domicile of the owner, and that statutory provision would be sufficient to justify the conclusion in the case cited, Ayithout claiming the proposition to be a general one.
I am of opinion that that part of the estate of decedent in the hands of the Missouri administrator is properly subject to taxation in this State, and not elseAYhere, and that the judgment of the Circuit Court reversing the order of the County Court should be reversed.
The other judges concur.