dissenting: The majority opinion proceeds upon the theory that the tax in controversy is measured by the value of the decedent’s property, which at the time of his death, was “situated in the United States”; that the question of what constitutes property situated in the United States within the meaning of the statute is one of legislative intention, which must be determined in the light of those accepted principles pursuant to which property may be deemed to have a situs in this country for the purpose of Federal taxation; and *574that, upon authority of Burnet v. Brooks, 288 U. S. 378, it was well established when the statute was enacted that the taxing power could reach stocks and bonds physically present in the United States, in the view that they had a situs where they were physically located.
With so much I agree, but error lies, I think, in predicating the majority opinion upon the assumption that intangibles, such as stocks and bonds, have a taxable situs only at the place where the certificates are physically located, or that such was the accepted doctrine at the time the applicable revenue act was passed.
While it was held in the Brooks case, supra, that stocks and bonds of a nonresident alien decedent physically present in New York were includable in the decedent’s gross estate, the Supreme Court in its opinion said nothing to indicate that the place where the certificates were physically located constituted the sole taxable situs, nor that the domestic bonds, which comprised part of the Brooks estate, were not also subject to the tax because the domicile of the debtors was. in the United States. All of the securities involved in that case were in this country, and hence it was sufficient for the Court to predicate its holdings solely upon that ground.
It is to be noted, however, that, in addition to the securities mentioned, Brooks at the time of his death had a credit balance of $14,517.98 representing cash on deposit with Lawrence Turnure & Co. in New York City. Section 303 (e) pf the Revenue Act of 1926 provides that moneys, deposited with any person “carrying on the banking business” by or for a nonresident decedent who was not engaged in business in the United States at the time of his death, shall not be deemed property within the United States. The Board found that the decedent was not engaged in business in the United States at the time of his death, but did not find as a fact whether or not Turnure & Co. was carrying on the banking business, since that point was immaterial in the view of the case taken by the Board. The Supreme Court in its opinion said:
The securities should be included in the gross estate of the decedent; the inclusion of the balance of the cash deposit will depend, under the statute, upon the finding to be made with respect to the nature of the business of the concern with which the deposit was made.
The Court further pointed out that in the exercise of its power Congress, save as stated, “did not except debts due to a nonresident from resident debtors.”
Thus, the view of the Court was clearly indicated that unless the deposit came within the specific exemption of the statute, that is, unless Turnure & Co. was engaged in the banking business, the *575amount' of the deposit would be includable in the gross estate. Yet, the deposit was merely a domestic credit owned at the time of his death by a nonresident alien decedent, and obviously could not be included in his gross estate under the theory applied to the securities physically located in this country. Such credit, it would seem, could be said to come within the purview of the taxing statute only because of the then accepted principle that domestic credits had a situs for taxation at the domicile of the debtors.
Prior to Farmers Loan & Trust Co. v. Minnesota (January 6, 1930), 280 U. S. 204, it had long been the accepted doctrine of the courts of this country that intangibles, such as bonds and other securities, might have a taxable situs in four jurisdictions, namely, (1) at the domicile of the creditor or owner, Kirtland v. Hotchkiss (October 1879), 100 U. S. 491; Bullen v. Wisconsin (April 10, 1916), 240 U. S. 625; (2) at the debtor’s domicile, Blackstone v. Miller (January 26, 1903), 188 U. S. 189; Liverpool, etc., Insurance Co. v. Orleans Assessors (May 15, 1911), 221 U. S. 346 (and authorities there cited); (3) at the place where the instruments are found— physically present, De Ganay v. Lederer (June 9, 1919), 250 U. S. 376 (and authorities cited) ; and (4) within the jurisdiction where the owner has caused them to become integral parts of a localized business, Board of Assessors v. Comptoir National (November 30, 1903), 191 U. S. 388; Metropolitan Life Insurance Co. v. New Orleans (April 8, 1907), 205 U. S. 395.
At the time of the enactment of the Revenue Act of 1926, which is the statute governing this proceeding, it was an accepted principle, long theretofore established by decisions of the Supreme Court of the United States, that debts had a situs for taxation at the domicile of the debtors. This doctrine was equally as well established as the principle that securities are also subject to tax in the jurisdiction where the instruments are found — physically present — the basis upon which was rested the decision in the Brooks case.
Blackstone v. Miller, supra, decided January 26, 1903, involved the question of the power of the State of New York to impose a succession or transfer tax upon debts, including a deposit in a trust company, owing by residents of New York to a citizen of Illinois, who died domiciled in that state. The New York statute levied the tax only “on property within the State” where the decedent was a nonresident of the state at the time of his death. Thus, the question was whether the debts involved constituted property within the State of New York, the domicile of the debtors. The Supreme Court upheld the right of New York to impose the tax, holding that the *576debts had a taxable situs in the state of the debtors’ domicile, notwithstanding they were also taxable in Illinois, saying:
If the transfer of the deposit necessarily depends upon and involves the law of New York for its exercise, or, in other words, if the transfer is subject to the power of the State of New York, then New York may subject the transfer to a tax. United States v. Perkins, 163 U. S. 625, 628, 629; McCulloch v. Maryland, 4 Wheat. 316, 429. But it is plain that the transfer does depend upon the law of New York, not because of any theoretical speculation concerning the whereabouts of the debt, but because of the practical fact of its power over the person of the debtor. * * * What gives the debt validity? Nothing but the fact that the law of the place where the debtor is will make him pay. * * *
Power over the person of the debtor confers jurisdiction, we repeat. And this being so, we perceive no better reason for denying the right of New York to impose a succession tax on debts owed by its citizens than upon tangible chattels found within the State at the time of the death.
And in Liverpool, etc., Insurance Co. v. Orleans Assessors, supra, decided May 15, 1911, the Court said:
The legal fiction, expressed in the maxim mobilia sequuniw personam yields to the fact of actual control elsewhere. And in the case of credits, though intangible, arising as did those in the present instance, the control adequate to confer jurisdiction may be found in the sovereignty of the debtor’s domicile. The debt, of'course, is not property in the hands of the debtor; but it is an obligation of the debtor and is of value to the creditor because he may be compelled to pay; and power over the debtor at his domicile is control of the ordinary means of enforcement. Blackstone v. Miller, 188 U. S. 205, 206. Tested by the criteria afforded by the authorities we have cited, Louisiana must be deemed to have had jurisdiction to impose the tax. The credits would have had no existence save for the permission of Louisiana; they issued from the business transacted under her sanction within her borders; the sums were payable by persons domiciled within the State, and there the rights of the creditors were to be enforced. If locality, in the sense of subjection to sovereign power, could be attributed to these credits, they could be localized there. If, as property, they could be deemed to be taxable at all, they could be taxed there.
Bonds, like simple contract debts, are merely choses in action, and their situs for purposes of taxation is to be determined under the principles applicable to similar intangibles. This is made plain by the opinion of the Court in Blodgett v. Silberman, 277 U. S. 1, from which the following is quoted :
The question here is whether bonds, unlike other choses in action, may have a situs different from the owner’s domicile, such as will render their transfer taxable in the State of that situs, and only in that State. We think bonds are not thus distinguishable from other choses in action. * * * While bonds are so treated, they are nevertheless in their essence only evidences of debt.
That Congress had the power or jurisdiction to impose the tax in dispute is conceded by the prevailing opinion, and" I think it is so clearly settled by the BrooTcs decision as not to require discussion *577here. Bather, the question is whether the bonds, by the value of which the present tax is measured, constituted property “situated in the United States”, as that term was used by Congress in the statute.
In Burnet v. Brooks, supra, the Court in its opinion said:
Again, so far as the intention of the Congress is concerned, we think that the principles thus impliedly invoked by the statute were the principles theretofore declared and then held. It is quite inadmissible to assume that the Congress exerting federal power was legislating in disregard of existing doctrine, or to view its intention in the light of decisions as to state power which were not rendered until several years later.
(Blackstone v. Miller, supra, was not overruled until 1930, nearly four years after the enactment of the Bevenue Act of 1926.)
As shown above, the doctrine theretofore declared and then held at the time the 1926 Revenue Act was passed recognized that domestic credits, such as the bonds we are concerned with in this case, had a taxable situs at the domicile of the debtors, as well as at the place where the certificates or paper evidences were physically located, or at the domicile of the creditors or owners, or where they had become parts of a localized business. It follows that for precisely the same reason which the Court found sufficient in the Brooks case, the bonds here in question should be included in decedent’s gross estate.
It is unimportant that the doctrine referred to, as applied to the power of a state to tax under the Fourteenth Amendment, was later overruled in Farmers Loan & Trust Co. v. Minnesota, supra. It was an accepted principle at the time of the enactment of the taxing statute, and is controlling in the determination of the Congressional intendment.
Furthermore, the Supreme Court, in the later case of First National Bank of Boston v. State of Maine, 284 U. S. 312, took care to point, out that it was there dealing with the power of the states; under the due process clause of the Fourteenth Amendment, and, after discussing the desirability that the taxation of intangibles, as well as tangibles, be limited to one state, the Court solved the problem as to which of the states should be permitted .to impose the tax by applying the maxim mobilia segmmtur personam. That the rule there laid down as applicable to the states does not apply to the Federal Government was positively and definitely stated in the Brooks case, wherein the Court, in dealing with a case under the Federal estate tax statute, rejected the doctrine of mobiUa sequuntur personam which it had applied in the decision just mentioned.
For the reasons indicated, it is my opinion that the decision in the case at bar should be for the respondent. ' .
TURNER agrees with this dissent.