The question is as to whether the next of kin of a non-resident decedent intestate are liable to pay a collateral inheritance tax on the personal property of such decedent found within this state.
The statute provides that "after the passage of this act 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 * * * shall be and is subject to a tax of five dollars on every hundred dollars of the clear market value of such property, etc. (Chap. 713, Laws of 1887.)
The taxes imposed by this act are special, and not general, and the rule is that special tax laws are to be strictly construed against the government and favorably to the taxpayer; that a citizen cannot be subjected to special burdens without clear warrant of law. (In the Matterof McPherson, *Page 90 104 N Y 306-317; Dos Passos on Collateral Inheritance Taxes, 41.) In theMatter of Enston (113 N.Y. 134-177), ANDREWS, J., in delivering the opinion of the court, says: "The tax imposed by this act is not a common burden upon all the property or upon the people within the state. It is not a general but a special tax, reaching only to special cases and affecting only a special class of persons. * * * In such a case they (the executors) have the right, both in reason and in justice, to claim that they shall be clearly brought within the terms of the law before they shall be subjected to its burdens. It is a well-established rule that a citizen cannot be subjected to special burdens without clear warrant of law."
With this rule in view, operating as our guide, let us review the statute. "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." Here we have clearly expressed the legislative intent to subject to the tax, both real and personal property of a resident which shall pass by will or by the intestate laws of this state. The condition upon which the tax may be imposed is that the property shall pass by will or by the intestate laws of the 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." As we have seen, the former clause of the statute quoted refers to the residents of the state and the latter clause to non-residents. The two clauses are connected by the word "or." But we do not understand that by the use of this word it was intended to provide for the taxing of other property than that mentioned in the former clause, but only to provide for the taxing of such property of a non-resident decedent which shall be within this state at the time of his death, and this intention is made apparent from the use in the latter clause of the words "which property," thereby referring to the property which should pass by will or the intestate laws of this state.
If we are correct in this interpretation of the statute, it follows that the tax in question was improperly imposed, for the *Page 91 reason that the property of the decedent found in this state was personal, and the situs being with the owner, it would not pass by the intestate laws of this state. (Redfield Surrogate's Court [2d ed.], 588.)
Chapter 483 of the Laws of 1885 was amended by the act in question by the insertion of the words "if such decedent was not a resident of this state at the time of death." Under the former act it was held that the tax could be imposed only upon property so passing by will or by the intestate laws of this state, etc. (In the Matter of Enston, supra.)
It is now contended that it was the intention in amending the former act to bring in non-resident decedents and subject their estates to the same burdens as residents. This was doubtless the intention as to the real estate, but as to the personal estate we cannot assume that it was the intention to impose a greater or heavier burden upon non-residents than that which was imposed upon residents. Under the act of 1885 the tax could not be imposed upon real estate within this state of a non-resident. Such real estate is subject to the jurisdiction of our state, and would pass under its laws and under the amended provision of the act of 1887; it would clearly be assessable here and could not be elsewhere. But it is quite different with the personal property of a non-resident. As we have already stated, the situs of such property is with the owner, and upon his death is distributed according to the law of his domicile, and does not pass under our intestate laws. (Redfield Surrogate's Court, supra.)
In many of the states similar laws to the one in question have been enacted. So that if the personal property of a non-resident decedent should be assessed in this state and the tax imposed upon the next of kin, it would subject them to the payment of a double tax, for after the transmission of the property to the state of the domicile, it would pass under the laws of that state, and they would be liable to the payment of a similar tax in that state. And the same would be true of a decedent of this state who should die having personal property in another state. After being taxed in that state, and the *Page 92 property transmitted to this state, it would pass under our laws and would, consequently, under the provisions of the act, be clearly liable to the assessment of a collateral inheritance tax.
Again referring to the statute, all property which shall pass by will, or the intestate laws of this state, shall be subject to the tax.
In determining the question whether the property is subject to the tax, the test is, does it pass in the manner provided by the statute?
As we have seen, the property in question does not pass by will, or under any of the laws of our state.
The order should be reversed and the proceedings dismissed.
All concur with VANN, J., except HAIGHT, J., dissenting.
Order affirmed.