dissenting: As the majority opinion points out, the situs of bonds does not shift by reason of temporary physical absence when it is apparent that the owner intends to return them to their original situs. I would accept the reasoning of the majority that by analogy bonds would not lose their original situs because of their destruction when it is apparent that the owner intends to exercise his equitable right to a reissuance of the bonds and intends to place the reissued bonds where the original bonds were. Thus, if the owner of bonds of an American corporation lived in England, if the bonds had a situs in England, if the bonds were destroyed, and if it was apparent that the owner intended to effect their replacement and their return to England, but died before such replacement and return were effected, then I would agree that the bonds did not lose their original situs, they were not “property situated in the United States,” and it is not the congressional intent that they should be includible in such a decedent’s estate.
However, the facts of the instant case, in my opinion, make impossible such a result supported by such a line of reasoning. Here, the original owner of the bonds of the American corporation was a national and resident of Germany who caused the bonds to be placed for safekeeping in England. It appears that he had given these bonds in 1930 to his son who has lived in Argentina since 1932. The bonds were destroyed in 1941. The original owner (the decedent) lived in Germany from a time prior to the destruction of the bonds until his death, and “probably never learned of the destruction of the bonds * *
He died in 1944, a few days after leaving a German concentration camp. In 1943 (prior to decedent’s death) the American Alien Property Custodian took over the property of decedent and “made demand on [the American] Company for the bonds destroyed in the air raid,” and pursuant to this demand the bonds were reissued to the Alien Property Custodian.
Under these circumstances, it seems obvious to me that the decedent could have had no intention between the time of the destruction of the bonds and the time of his death to cause the reissuance of these bonds and their return to England, and, even if he had such an intention, he did not have the right to effect it. After 1943 the only person having the right to cause the reissuance of the bonds by the American debtor corporation was the Alien Property Custodian. It is impossible for me, on the facts of this case, to consider the physical destruction of the bonds as analogous, for purposes connected with the determination of their situs, to temporary absence from the place of original situs within the rationale of N. Y. Central Railroad v. Miller and Delaney v. Murchie, cited in the majority opinion.
Therefore, I would conclude, contrary to the conclusion of the majority, that the bonds lost their original situs in England before decedent’s death, and that the bonds (considered as having been reissued to the Alien Property Custodian pursuant to a right to such issuance vested in him before decedent’s death) or the debts at one time evidenced by the bonds constituted “property situated in the United States” at the time of decedent’s death and, as such, were includible in decedent’s estate.