The reargument of this case has brought us to the conclusion that our first decision was wrong. It is unnecessary to repeat the facts, except to emphasize that all investments made by the Minnesota trustee were "subject to the approval" of Mr. Frank "during his lifetime." He reserved the income to himself during life and also, and this is especially important, he had the right to revoke the trust at any time. The operative thing, therefore, in transferring the property, under the trust or otherwise, was his death, while domiciled in North Dakota, without having exercised the power of revocation.
It is immaterial that the intangibles in question may have been subject, in the possession of the trustee, to the Minnesota moneys *Page 162 and credits tax. It is not the property which Minnesota is now seeking to tax. It is rather and only the transfer of, or succession to, or both (see In re Estate of Rising, 186 Minn. 56,242 N.W. 459), the title and beneficial enjoyment of the property which took place by reason of Mr. Frank's death in North Dakota. It is now settled law that intangibles such as those presently involved "are subject to the imposition of an inheritance tax only by the domiciliary state." First Nat. Bank v. Maine, 284 U.S. 312, 326, 52 S.Ct. 174, 176, 76 L. ed. 313 (following Farmers L. T. Co. v. Minnesota, 280 U.S. 204,50 S.Ct. 98, 74 L. ed. 371, 65 A.L.R. 1000). As said in the Maine case [284 U.S. 329] "death duties rest upon the power of the state imposing them to control the privilege of succession," and that, naturally, is the state of the domicil of the deceased — in this case, North Dakota.
Our original opinion, erroneously we now conclude, was put upon the conclusion that the property covered by the trust had acquired a situs in Minnesota "analogous to the actual situs of tangible personal property" (see First Nat. Bank v. Maine,284 U.S. 312, 331). But the controlling fact remains that the transfer which took place upon Mr. Frank's death did not occur here. The "fundamental conception" is "that the transmission from the dead to the living of a particular thing, * * * is an event which cannot take place in two or more states at one and the same time." "Since death duties rest upon the power of the state imposing them to control the privilege of succession," the domiciliary state is the one having the power to levy a death tax, if any. The thing the transfer of which is taxed is "an incorporeal property right which attaches to the person of the owner in the state of his domicil."
The involved trust property had not acquired, in Minnesota, "a situs analogous to the actual situs of tangible personal property" within the reservation of the Maine case. It was not part of any local business conducted by Mr. Frank. We repeat that the transfer thereof on his death took place under the laws of North Dakota. Hence the mere fact that the property, the title and enjoyment of which were the subject of the transfer, had a quasi situs here is just as unimportant as was the fact that, in Blodgett v. Silberman, *Page 163 277 U.S. 1, 48 S.Ct. 410, 72 L. ed. 749, a partnership property, all of it, had an actual situs in New York. Yet the right of Connecticut to impose tax upon the transfer of the whole interest of one of the partners, who died a resident of Connecticut, was upheld. The right of North Dakota to levy a death tax upon the transfer here involved is sustained by Bullen v. Wisconsin, 240 U.S. 625, 36 S.Ct. 473,60 L. ed. 830. It remained for Farmers L. T. Co. v. Minnesota,280 U.S. 204, and First Nat. Bank v. Maine, 284 U.S. 312 (overruling many previous decisions), to determine that, the domiciliary state having the sole right to impose a death tax, no other state can have a similar right. We hold that North Dakota has the sole right to tax the transfer here in question; and that Minnesota has none.
Order reversed.