The question is whether the challenged assessment for personal property tax for the year 1935 is authorized by the State Personal Property Tax Act of June 22, 1935, P. L. 414,72 PS section 3242 et seq., which provides that "All personal property of the classes hereinafter enumerated, owned, held or possessed by any resident whether . . . in his own right, or as . . . trustee . . ." shall be taxed.
The assessment was made against "Ethel M. Dorrance, George M. Dorrance, M.D., Arthur Calbraith Dorrance, et al., Trs." under the will of John T. Dorrance, deceased, who died September 21, 1930, in Cinnaminson, New Jersey. Pursuant to directions contained in his will, it was admitted to probate in the office of the Surrogate of Burlington County, New Jersey, on October 2, 1930.1 Ethel M. Dorrance, George Morris Dorrance, M.D., Arthur Calbraith Dorrance and the Camden Safe Deposit and Trust Company, a corporation doing business in Camden, New Jersey, were named as executors and trustees. In 1935 the executors, as permitted by the law of New Jersey,2 transferred to themselves as trustees all the assets in the trust estate. *Page 165
The property involved in this suit was valued by the Commonwealth's taxing officers, for purposes of taxation, at $27,256,126.00 and was assessed at the rate fixed by the statute in the amount of $27,256.13.
The assessment was on 3/4 of the total value of the taxable property and, while the words "et al." appear after the names of the three persons mentioned in the assessment and so might be understood to constitute an assessment against the Camden Safe Deposit and Trust Company, the fourth trustee, we were informed at the argument that the assessment was fixed at 3/4 of the taxable assets because three of the four trustees resided in Pennsylvania; Mrs. Dorrance residing in Delaware County, Doctor Dorrance in Philadelphia, Arthur C. Dorrance in Montgomery County. The trustee, the Camden Safe Deposit and Trust Company is a corporation organized under the law of New Jersey with its principal office in the City of Camden in that state; it is not authorized to engage in business in Pennsylvania. In all, there are three trusts created by the will, one, of $10,000 for the maintenance of a family burying place, etc.; another, of $360,000 for the benefit of decedent's sisters; and the third, of the entire residue for the benefit of decedent's widow and children, etc.
The four trustees appealed from the assessment to the court below, from which, the assessment having been sustained, they now appeal to this court. They contend they have shown that the seat of the trust is in New Jersey and that testator intended it should be there; that the property is evidenced by identified documents which are kept there by them; that the trust is administered as a unit in that state according to its laws; that none of their duties as trustees is performed in this state and that it is, therefore, (1) not subject to the property taxing power of Pennsylvania, or (2) not within the terms of the statute.
Before dealing with the facts and appellants' legal contentions, a word may be said about the nature of the title by which trustees hold the trust property. It has *Page 166 long been settled, as was said in Vandever's Appeal, 8 W. S. 405, 409, that "When the administration of a trust is vested in co-trustees, they all form but one collective trustee. They must, therefore, execute the duties of the office in their joint capacity. . . ." And that is the general rule.3 "Each [joint tenant] has an undivided moiety of the whole, and not the whole of an undivided moiety. . . . The interest of two joint tenants is not only equal or similar, but also is one and the same. . . . While it continues, each of two joint tenants has a concurrent interest in the whole; . . .": Haggerty'sEstate, 311 Pa. 503, 506, 166 A. 580.
The following findings were made by the learned court below:
"12. There are two beneficiaries of the $360,000 trust, one a resident of the State of New Jersey and the other a resident of the State of California. There are six beneficiaries of the residuary trust, one a resident of the State of Rhode Island, Four residents of the State of Pennsylvania, and one, a minor, whose guardian is the Camden Safe Deposit and Trust Company.
"13. The total trust estate in the hands of Appellants, as of January 1, 1936, was of the approximate value of $50,000,000, $36,341,501.95 being the agreed value of those assets which are taxable in this proceeding, if any part of the estate is subject to the Pennsylvania Personal Property Tax, and $13,700,426.80 being the book value of those assets exempt from the Pennsylvania Personal Property Tax.
"14. The above item of $36,341,501.95 consists of Mortgages of the value of $39,800, Public Loans or Bonds of the value of $5,095,287.50, bonds, notes or evidences of indebtedness of the value of $30,706.25 and *Page 167 shares of corporate stock of the value of $31,176,708.20.
"15. Among the shares of corporate stock in the above figure of $31,176,708.20, is all of the common stock of the Campbell Soup Company, of the value of $29,429,255.09. The balance of $1,747,453.11 consists of stock in twenty-four other corporations, . . .
"16. The above item of $13,700,426.80 is comprised of $7,329,000 in United States Treasury Notes, $43,700 in corporate bonds, and $6,327,726.80 in stock of twenty-four well known corporations, . . .
"17. Between the date of Decedent's death, September 21, 1930, and January 1, 1936, the approximate date on which the assets in question were transferred from the executors to the trustees, the executors made more than thirty-five sales of securities, more than twenty-five exchanges of securities and more than twenty purchases of securities, the largest single transaction being the sale of all of the outstanding Preferred Stock of the Campbell Soup Company, at a price in excess of $13,000,000.
"18. During the six months' period between July 1, 1935, and January 1, 1936, the trustees made seven changes in investments, none of which involved large amounts.
"19. At the time of his death, Decedent was the owner of all of the Common stock of the Campbell Soup Company and Appellants, as trustees, have succeeded to and still retain this ownership. This investment, at the time of Decedent's death, represented 58 per cent. of the book value of his estate, and, as of January 1, 1936, represented 67 per cent. of the book value of the trust estate, the increase in percentage being due to the payment of large sums in estate and inheritance taxes. The Common Stock of the Campbell Soup Company, on January 1, 1936, comprised approximately 81 per cent. in value of the assets of the trust estate claimed to be taxable in this proceeding.
"20. All of the securities of said trust estate are either registered in the names of 'Ethel M. Dorrance, George *Page 168 Morris Dorrance, M.D., Arthur C. Dorrance, and Camden Safe Deposit and Trust Company, Trustees under the will of John T. Dorrance, Deceased,' and kept in a safe deposit box of the Camden Safe Deposit and Trust Company, leased by the trustees in Camden, New Jersey, or, if unregistered, are kept in the vaults of the Camden Safe Deposit and Trust Company, and access thereto can be had only by properly authorized representatives of the corporate trustee."
As the property is of the class generally described as "intangible" and as we are dealing with resident and also nonresident trustees, it is necessary, in considering the appeal, to have in mind what was said by the Supreme Court inSafe Deposit Trust Company of Baltimore v. Commonwealth ofVirginia, 280 U.S. 83, 92, in considering the power to tax trust property of that character: "Ordinarily this Court recognizes that the fiction of mobilia sequuntur personam may be applied in order to determine the situs of intangible personal property for taxation: Blodgett v. Silberman,277 U.S. 1. But the general rule must yield to established fact of legal ownership, actual presence and control elsewhere, and ought not to be applied if so to do would result in inescapable and patent injustice, whether through double taxation or otherwise . . . [citing cases] . . . Here, where the possessor of the legal title holds the securities in Maryland, thus giving them a permanent situs for lawful taxation there, and no person in Virginia has present right to their enjoyment or power to remove them, the fiction must be disregarded. It plainly conflicts with fact; the securities did not and could not follow any person domiciled in Virginia. Their actual situs is in Maryland and can not be changed by the cestui que trustent." See also Wheeling Steel Corp. v. Fox, 298 U.S. 193.
Accordingly, we must inquire whether, as contended by the appellants, the record shows that a trust was established in New Jersey to be administered there, with *Page 169 trust property maintained there, without control elsewhere, and whether the trust is being administered there; in other words, whether New Jersey may be regarded as the "trust domicile," if that term may be used.
The established fact is that the property is identified as trust property and is located and administered at the trust domicile. The will clearly shows that such administration of the trust in Camden, New Jersey, was intended by the testator.4 By far the larger part of trust property was and is invested in the capital stock of the Campbell Soup Company all of which belonged to testator and which by his will he provided should be conserved for purposes there stated. The will conferred on the trustees extensive powers for the investment of trust funds in aid of the company. As showing in part the character of the trust administration at the trust domicil the following findings may be quoted at this point:
"26. The board of directors of the Campbell Soup Company consists of nine members, among whom are Appellants, Ethel M. Dorrance, George Morris Dorrance, Arthur Calbraith Dorrance, and a representative of the corporate trustee. Arthur Calbraith Dorrance is president and general manager of said corporation.
"27. The trustees rent an office in the building of the Camden Safe Deposit and Trust Company where they hold regular meetings for the consideration of matters connected with the trust estate. In the year 1935 there were forty-five such meetings, thirty-six thereof being held in the office of the trustees in the Camden Safe Deposit and Trust Company building and nine thereof being held in the office of the Campbell Soup Company. There have been no meetings of the trustees outside of the City of Camden, State of New Jersey.
"28. At the meetings of the trustees, all of the investments of the trust estate are considered, but a large portion *Page 170 of the time is devoted to discussion of the affairs of the Campbell Soup Company.
"29. The meetings of the trustees are held in Camden because the mortgages, bonds, certificates of stock, etc. of the trust estate are kept in a vault at the Camden Safe Deposit and Trust Company, because it is essential that one or more officers of that institution be present at the meetings, because Camden is most convenient for Arthur Calbraith Dorrance, and because it is considered desirable that the meetings be held at a place where the records of the Campbell Soup Company will be available.
"30. The trustees have properly construed the Will of Decedent as imposing upon them the primary duty of retaining the Common Stock of Campbell Soup Company as an asset of the trust estate. Because this stock comprises such a high proportion of the trust estate, the trustees have adopted the policy of investing the balance of the trust estate primarily for safety and liquidity. For this reason an increasing percentage of the assets has been invested in United States Treasury Certificates."
The statute authorizes a tax on personal property owned, held or possessed by any resident in his own right or as trustee. The legal title to the property assessed is not in any resident of Pennsylvania but in the four trustees, one of them, the corporate trustee, not engaged in, and having no right to engage in business in Pennsylvania. They hold the trust property as a unit in the State of New Jersey. The ownership, holding or possession of the trust property is therefore not within the words of the statute; it contains no provision for dividing such trust property among resident and nonresident trustees for purposes of this tax. The taxing officers realize that the facts presented show a case that is not within the words of the statute but endeavor to bring the property within its provisions by construing it as if the legislature had said that in the case of resident and nonresident trustees a proportionate part *Page 171 should be taxed here. In so construing the statute, we think, for various reasons, that the taxing authorities and the learned court below reached a result which the statute does not allow. The familiar rule is that unless property is clearly within a taxing statute, it is not taxable: Arbuckle's Estate,324 Pa. 501, 505, 188 A. 758.
The learned court below recognized that the trustees held by joint tenancy but, apparently treating them as tenants in common, concluded that "the undivided three-quarters interest in the trust assets held by individual residents of the State of Pennsylvania is taxable under the . . ." statute. The legislature has not attempted to authorize a division of the joint tenancy title. It is quite apparent from the amendment5 to the Act (if we may refer to it) made by the same legislature at the special session of 1936, that it had no intention, when it passed the Act in 1935, to tax to resident trustees of foreign held trust property, because the amendment provides for the taxing to resident beneficiaries of equitable interests in foreign trusts. Without now considering the power of the legislature as exercised, the amendment taxing beneficial interests would seem to indicate that the legislature thought it had not already taxed the same property in the trustee's hands. *Page 172
In view of Safe Deposit Trust Company v. Virginia,280 U.S. 83, (supra) and Wheeling Steel Corp. v. Fox, 298 U.S. 193, dealing directly with taxation of intangibles, it is unnecessary for the purposes of this case to refer to decisions concerning estate, inheritance or excise taxes or earlier decisions of this court. We also think it is unnecessary now to refer particularly to the cases cited by the learned court below or considered in the briefs. Those dealing with the administration of estates by more than one executor (compareThompson's Estate, 130 Pa. Super. 263, 197 A. 547) while of interest, may be laid aside because during administration the property is generally considered in the custody of the court in which they account. Cases from the states in which trustees hold as tenants in common may also be passed over, because the interest of a tenant in common is essentially different from that of a joint tenant. Cases in which trust assets were divided pursuant to the command of a statute, for that reason, do not aid the appellee. Two cases from Maryland are cited: Mayor of Baltimore v. Stirling et al., Trustees,29 Md. 48 (1868), and The Appeal Tax Court of Baltimore City v.Gill et al., Trustees, 50 Md. 377 (1878); from what appears in the reports of those cases, we do not find them of assistance in the construction of our statute.
On the other hand, there are cases which support appellants' view that the trust is a unit and will not be divided in the absence of statute requiring it. In People v. Coleman,119 N.Y. 137, 23 N.E. 488, the statute provided: " '. . . all debts and obligations for the payment of money due or owing to persons residing within this state, however secured, or wherever such securities shall be held, shall be deemed, for the purposes of taxation, personal estate within the state, and shall be assessed as such to the owner or owners thereof in the town, village or ward in which such owner or owners shall reside. . . .' " The state assessed bonds and mortgages composing the trust property held by three *Page 173 trustees, two residing in New York and one in New Jersey. The securities were in the physical possession of the New Jersey trustee. In holding that such property was not taxable under the statute quoted, PECKHAM, J., said: "The case here presented is one where the persons assessed are not the absolute owners of the property, but are trustees, and have only a representative or official interest therein, and but two out of the three are residents within the state, while a third resides in another state and also has the custody and control of the property, and the beneficiaries are also nonresidents. Does the act of 1883 meet such a case? We think not. It is not a debt due and owing to persons residing within this state, for it is one which is due or owing to them in connection with another who is a joint owner, and who is not a resident within this state and such other has possession of the securities. The statute means that the debt must be one which is solely due or owing to residents of this state."
In Newcomb v. Paige, 224 Mass. 516, 113 N.E. 458, the statute involved provided: " 'Fifth, Personal property held in trust by . . . trustee, the income of which is payable to another person, shall be assessed to the . . . trustee in the city or town in which such other person resides, if within the commonwealth; and if he resides out of the commonwealth it shall be assessed in the place where the . . . trustee resides; and if there are two or more . . . trustees residing in different places, the property shall be assessed to them in equal portions in such places. . . .' "
The case involved a trust of which there were three trustees, one resident in Massachusetts, one in California, and one in New York. All of the securities were kept in New York in the custody of the New York trustee. An assessment was made against the Massachusetts trustee for one-third of the property. In the course of an opinion holding the assessment void, RUGG, C. J., said (p. 520); "When there are several trustees, one or more *Page 174 of whom is domiciled in the State of origin of the trust, and the corporeal custody of the securities of the trust is with that trustee at his domicil, and the title of the trustees is joint and their powers must be exercised as a unit, there is no such several ownership in one trustee resident outside the state of the establishment of the trust, but resident in Massachusetts, as brings him within the scope of our tax law as to the trust property. St. 1909, c. 490, pt. 1, section 23. Under these circumstances he alone as resident of this commonwealth does not hold the title as owner within the commonwealth in such sense as to bring him within the terms of the tax act. He cannot exercise ownership as a resident in this Commonwealth, but only by conjoint action with his fellow trustees, none of whom are resident here, as to a fund in substance in the custody of the courts of another jurisdiction. His ownership is not of such character as to bring the taxable domicil of the trust within the terms of our law." See alsoHawk v. Bonn, 6 Ohio C.C. 452; Goodsite v. Lane, 139 Fed. 593 (C.C.A. 6th Ct.).
In the circumstances, it is also unnecessary to consider appellants' contention that the trust property had acquired a "business situs" in New Jersey and was therefore not within the statute.
The order dismissing the appeal and affirming the assessment of taxes made by the Department of Revenue is reversed and the record is remitted with instructions to sustain the appeal and set aside the assessment.
1 While it was held in Dorrance's Estate, 309 Pa. 151,163 A. 303 (1932), that decedent at the time of his death was domiciled in Pennsylvania and that his estate was subject to an inheritance tax in this state, the administration of the estate has been conducted by the executors and the trustees in the State of New Jersey pursuant to the probate proceedings in Burlington County, and not under the law of Pennsylvania.
The New Jersey litigation dealing with decedent's domicil in that state is reported as Dorrance et al. v. Thayer-Martin TaxCom'r, 115 N.J. Eq. 268, 170 A. 601; 116 N.J. Eq. 204,172 A. 503; 13 N.J. Mis. 168, 176 A. 902; 116 N.J.L. 362, 184 A. 743.
2 Fourth finding of fact.
3 See Perry on Trusts and Trustees, 7th ed., sec. 411; Lewin, Trusts, *p. 258; Restatement, Trusts, sec. 103, comment a; sec. 194. Van Order v. Bailey, 104 N.J. Eq. 585, 146 A. 419. Cf. Restatement, Trusts, sections 103, 104, 105. Corn ExchangeNational Bank v. Jones, 112 Pa. Super. 32, 170 A. 713.
4 On giving effect to such intention, see Beale, Conflict of Laws, Vol. 1, sec. 118C.40, and Restatement, Conflict of Laws, section 298.
5 The amendment passed at the special session of 1936, P. L. 51, amends section 3 by adding in the first paragraph as taxable property ". . . the equitable interest in any such personal property of the classes hereinafter enumerated, owned, held or possessed by any resident, where the legal title to such personal property is vested in a trustee, agent, or attorney-in-fact domiciled in another state, and where such resident is entitled to receive all or any part of the income therefrom. . . ." To the last paragraph of section 3 the following was added: "The value of the equitable interest in any personal property, made subject to tax by this section, shall be measured by ascertaining the value of the personal property in which such resident has the sole equitable interest, or in case of divided equitable interests in the same personal property, then by ascertaining such part of the value of the whole of such personal property as represents the equitable interest of such resident therein."