(dissenting):
The appellants, the executors and trustees of this estate, appeal from an order of the surrogate, which order affirmed an order *596made confirming an appraisement of thé value of the inheritance of Charlotte Whiting under the 'will of Augustus Whiting, deceased. The testator was .a non-resident, living at Newport in the State of Rhode Island, and by his will he left all his estate, real and personal, to his executors, the appellants, in trust, to receive the income and apply the same to the education and support of his daughter, Charlotte Whiting, until she arrived at the age of twenty-one, and after twenty-one to pay all the income of the estate to the said Charlotte during her life, and upon her death to pay the said principal of the trust over to the issue of the said Charlotte, and in case' sh'e should leave no issue, to the testator’s next of kin. The beneficiary, Charlotte Whiting, is also a resident Of Rhode Island, and, so far as appears, neither the testator nor the beneficiary has ever been a resident of this State. The testator died at Newport, and his will was admitted to probate at Newport, Rhode Island, on August 20, 1894. The appellants appeal from the action of the surrogate by which he assessed as liable to taxation bonds of foreign corporations secured by a mortgage upon railroads outside of the State óf New York, at the par value of $15,000, and four per cent bonds of the United States of the par value of $46,500.
The order in question affects two.-kinds of securities: First, bonds of foreign corporations secured by a mortgage upon property outside of the State of New York ; and, second, bonds of the United States. It does not appear whether these various bonds were coupon bonds .or registered bonds; hut I do not think that that is material. The act under which this assessment is made, which was in force at the time of the death of the testator, is chapter 399 of the Laws of 189.2. The 1st section of the. act in question provides that “ a tax shall be .and is hereby imposed upon the transfer of ■- any property, real or personal, * * * -. to persons or corporations not -exempt by law from taxation on real or personal property in the following cases; * 2s When the transfer is by will or intestate law of property within the State, and the decedent was a non-resident of the State at the time of his death.” And by section 22 of "the act it is provided that “the words ‘estate’ and‘property,’ as used in this act, shall be taken to mean the property or interest therein of the testator, * * * passing or transferred to those not herein specifically exempted from the provisions of this act, * * * *597and shall include all property or interest therein, whether situated within or without this State, over which this State has any jurisdiction for the purposes of taxation.”
There has been considerable discussion and some- conflict of judicial opinion as to whether the tax imposed under the provisions of this act is a tax upon “ property ” ór a tax upon the “ right of succession ; ” but it now seems to be settled that the tax is imposed on the “ right of succession ” under a will or devolution in case of intestacy. (See Matter of Merriam, 141 N. Y. 484.) There can be no doubt but that it was the intention of the Legislature to include within the property subject to this- tax all property that was within this State, over which the State had jurisdiction, for the purpose of taxation, so' that a legatee, devisee, heir or next of kin would take the property subject to this tax imposed upon the right to take under a will, or a devolution in case of intestacy. Before the State, however, can subject a person, to whom property is thus devised or bequeathed, to this tax, it seems to be' clear that the State must have acquired in some way jurisdiction over the persons who were, or who become, the owners of the property by the transfer, or over the property itself, that passes by the will or by operation of law. Under the 22d section of the act the property, as defined in the act, the right to take which is taxed, is to include property over which the State has jurisdiction for the purpose of taxation. If it appears that the State has no jurisdiction over the specific property, then we must get jurisdiction over this right of succession. Where did this right of succession to this property accrue?. In whose favor had it accrued ? . The testator was a resident of Rhode Island. He died there. His will was admitted to probate there. Upon the granting of letters there to ' his executors the title to his property vested in them. And his title is recognized by the laws of this State as giving a right to an executor to maintain an action individually to recover the possession of the property as its legal owner without a grant of letters by the courts of this State. (See Toronto Trust Co. v. C., B. & Q. R. R. Co., 123 N. Y. 45, and cases there cited.) Thus the right to succeed to this property became vested upon the probate of the will and the grant of the letters in Rhode Island. Over that right, if that can be considered property and taxable, this State had no jurisdiction, for it vested under the laws *598of a foreign State, entirely uncontrolled or unaffected by any law of this State. Thus the former owner and the beneficiary under the will • were both without this State, and the title passed under the laws of a foreign State. So that the right of succession, or right to take the property, was never within the jurisdiction of this State.
, I do not think this act should be extended so as to include, by a forced construction, property or interests not fairly within its provisions. And the intention of the Court of Appeals so to construe" it is apparent from the case of Matter of Seamam, (147 N. Y. 77).
There are three subdivisions to section 1 of this act imposing the tax. . The first subdivision applies to property bf a resident of this State passing -by will or intestate laws, and the second applies to the property of a decedent who was a non-resident of the State at the time of his death. The first subdivision, applying the legal .. principle that the situs of all the personal property of a decedent was at the place of his. domicile, taxed all such personal property located in this State or in a foreign State, thus asserting in a most general way the right by the State to impose upon one of its citizens a tax upon his property, irrespective of its actual locality. When the statute comes to deal with non-residents, however, a different problem is presented. The State has no jurisdiction over the residents of other .States to compel them to pay a tax upon property which is not when the tax is imposed within the jurisdiction of this State. But it says, however, that when the property of such nonresident is here, is within the jurisdiction of the State, such property shall pay a tax to this -State.
A consistent scheme can be given to this act by confining the second, subdivision to such property as has a tangible visible existence here, as distinct from the residence or domicile of the owner, so that in both cases the tax is upon the right of succession— in the one case because, the testator being a resident of this State, that right of succession passes to the legatee, devisee, heir at law or next of kin, under and by virtue of the-laws, of this State, in consequence of such residence ; in the other case, such right of succession is within the jurisdiction of this State "because of the fact that the property is so located within this State and under the control of its laws, that the right to succeed is created by the law of this State and the title to the property passes under its law. It is such property, and such *599property only, over which the-courts of this State have jurisdiction for the purpose of taxation, and that can he included within the definition contained in section 22 of the act.
The question as to whether this State had any such jurisdiction over these bonds of foreign corporations seems to be answered by the judgment of the Supreme Court of the United States in The Foreign Bond Case (15 Wall. 300). In that case a corporation organized under the laws of the State of Pennsylvania issued bonds secured by a mortgage upon its property, some of which bonds were held by the plaintiff in error, a resident of Ireland, in the Kingdom of Great Britain. Under the laws of the State of Pennsylvania, that State assumed to tax the interest payable upon such bonds and to require the Pennsylvania corporation to deduct from the interest that it paid upon such bonds the amount of the tax. And the Supreme Court of the United States held that such a tax was invalid. An extract from the opinion seems to be decisive of this question : “ But debts owing by corporations, like debts owing by individuals, are not property Of the debtors in any sense; they are obligations of the debtors, and only possess value in the hands of the creditors. With them they are property, and in their hands they may be taxed. To call debts property of the’debtors is simply to misuse terms. All the property there can be in the nature of things in debts of corporations belongs to the creditors, to whom they are payable, and follows their domicile, wherever that may be. Their debts can have no locality separate from the parties to whom they are due. This principle might be stated in many different ways and supported by citations from numerous adjudications, but no number of authorities and no forms of expression could add anything to its obvious truth, which is recognized upon its simple statement.” And on page 323 the court say : “ A mortgage being there a mere chose in action, it only confers upon the holder, or the party for whose benefit the mortgage is given, a right to proceed against the property mortgaged, upon a given, contingency, to enforce by its sale the payment of his demand. This right has no locality independent of the party in whom it resides. It may, undoubtedly, be taxed by the State when held by a resident therein, but when held by a non-resident it is as much beyond the jurisdiction of the State as the person of the owner.
*600“ It is undoubtedly true that the actual situs of personal property which has a visible and tangible existence, and not the domicile of its owner, will, in many cases, determine the State in which it may be taxed. The same thing is true of public securities consisting of State bonds and bonds of municipal bodies, and circulating notes of banking institutions; the former, by general usage, have acquired the character of and are treated as property in the place where they are found, though removeddrom the domicile of the owner; the latter-are treated and passed as money wherever they are. But other personal property, consisting of bonds, mortgages and debts generally, has no situs independent of the domicile of the owner, and cerr tainly can have none where the instruments, as in the present case, constituting the evidences of debt, are not separated from the possession of the owners.”
• Applying the principles here established, it seems to me plain that these obligations of a foreign corporation, secured by a mortgage upon its property, are not property over which this State has jurisdiction for the purpose of taxation. The testator was a nonresident, as are the beneficiaries under his will; over them this State has no jurisdiction, and debts due to them, or rights of action vested in them, arc their property, which are subject to taxation in the State or country of their domicile. There is no evidence as to the length of time that either of these obligations remained within this State, It does not appear that they were permanently located here, or that they were not here for some special purpose of a temporary nature. The Legislature might as well authorize. its officers to break into every safe deposit company in this State, and seize the securities or obligations held in such safe deposit companies,' and tax them, during the lifetime of their owners, regardless of their domicile, as to seize them upon the death of a person to whom such obligations are due, and tax them before they are allowed to be sent to the legal representatives of the testator in the foreign country for distribution according to the laws of such country. In such a case, as in the case at bar; if the claim of the comptroller were to be allowed, as-was said by Mr, Justice Field in the case before cited, “ It is only one of many cases where, under the name of taxation, •an oppressive exaction is made without constitutional warrant, -amounting to little less than an arbitrary seizure of private property. *601It is, in fact, a forced contribution levied upon property held in other States, where it is subjected, or may be subjected, to taxation upon an estimate of its full value.” That the same right of succession wouldbe subject to taxationin the State of the testator’s domicile, if the laws of that State were the same as the act in question, is clear; and we thus would subject this right of succession to double taxation simply because, for some reason not disclosed, the obligation of the debtor evidencing the debt happened to be within this State at the time of the death of the testator. ;
The Romaine Case (127 N. Y. 80) does not determine this question. That case is distinguished by the Court of Appeals in The Matter of James (144 N. Y. 12), where the court say : “ The property of the non-resident decedent, in that case, which was held to be liable to taxation, was stated to be a mortgage upon real estate in the city of New York; deposits in savings banks in that city, and stocks and bonds of different corporations, but whether domestic or foreign, it was not made to appear.” The Romaine case, therefore, is not an authority for holding that the stock and bonds of foreign corporations are property within this State; and the court in The Matter of James, in discussing whether or not the certificates of stock of foreign corporations which were in this State at the time of the death of the testator, who was a non-resident, were property, say: “ The appellant, in substance, argues that the provision for a tax on ‘ property * * * within this State,’ which the act of 1887 contains, shows that the Legislature intended to include as property for purposes of taxation, in the estate of a non-resident decedent, evidences of property like certificates of stocks; but, without discussing the power of the Legislature to do any such thing, we think that he is straining construction and importing a sense in the word ‘ property ’ which the law has not attached. Both in the Swift Case (137 N. Y. 77) and in the Merriam Case (141 id. 479) the testator was a resident of the State, and we held that certain personal chattels without the State, in the one case, and the stocks of foreign corporations, in the other case, should be included in the appraisement of the estaté for purposes of taxation. The-decision in each case, of course, rested upon the theory that the legal situs of the personalty could be regarded as at the owner’s domicile.”
*602Thus reading these four cases together, the rule would seem to he that the situs of stock in foreign corporations owned hy a decedent would be regarded as at the owner’s domicile, and that the same would apply to bonds of foreign corporations under the rule as laid down in the Foreign Bond Case (supra),, and the legal situs of such stocks and bonds not being within this State, this State could have no jurisdiction over fhe property in them for the purpose of taxation. The Bomaine case,, thus limited by the Jemes case, is not opposed to this view.
Section 4 of the Statutory Construction Act, being chapter 677 of the Laws -of 1892, is relied upon as in some way changing the meaning of the term “ personal property ” contained in the act in question. This section provides that the term “ personal property ” ■vncludes things in action and written instruments themselves as distinguished from the rights or interests to which they relate. This-act became a law at the same session of the Legislature as chapter 399 of the Laws of 1892, but subsequent to the passage of the last-named act, the Statutory Construction Act having become a law May 18, 1892, and chapter. 399—the tax law ^-having become a law April 30, 1892. This Statutory Construction Act does not, in express terms, apply to statutes passed prior to the time of its passage. Section 1 provides that the act “ is applicable to every statute unless its general object or the context of the language construed, or other provisions of law, indicate that a different. meaning or application was intended from that required to be given by this chapter.” 1+ is a general rule in the construction of statutes that they will not be given retroactive effect unless the language used expressly indicates such an intention. And I do not think that this general language could be held applicable to statutes in force at the date of its. passage.
It would certainly be a most dangerous principle to modify exists ing law seriously affecting property rights by the passage of an act which did not specifically change the existing laws, but which assumed to provide definitions for words used and which did not by its express terms have a retroactive effect. This Statutory Construction Act only applies to a statute where its general object, or ' the context of the language construed, or other provisions of law, did not indicate that a different meaning or application was intended.
*603Now, this act of 1892 (Chap. 399, § 22, before cited), which was-a law at the time of the passage of this construction act, does give a definite meaning to the Avords “ personal property.” The act itself attempts to define what is to be- taxed, and it thus shows that the Legislature intended to depend upon the provisions of the act itself to define what it intended to tax, and not to depend upon any statutory construction law theretofore or thereafter passed. It would come, I think, expressly within the limitation of section 1. of the Statutory Construction Law, as the provisions of chapter 399 would indicate that a different meaning or application was intended to be- given to this word “property,” as distinct from that given by the Statutory Construction Law. But even assuming that section 4 applied, it still' does not affect this question. An analysis of the section will show that it was not the intention of the Legislature to say that the rule of law that regarded a debt as property where the-creditor resided was to be changed. It simply said that the term “ personal property ” should include the obligation or written instrument itself, as distinguished from the right or interest to which it relates, so that when the word “ property ” was used it should include both the written instrument and the obligation created by it. And that this was not intended to have, and has not had, the effect of changing the rule theretofore existing is apparent from the cases-which decide that Avhere a resident of this State dies, his property, wherever actually located, is taxable here. That this Statutory Construction Act did undoubtedly give a specific meaning to the word property in statutes that were thereafter passed by which the word “ property ” Avhen used, unless a different meaning was clearly intended, so that such word property should apply to the instruments evidencing an indebtedness, as well as the debt itself, is clear. But nothing therein would indicate an intention of the Legislature to change the well-settled rule of law that the actual property was the indebtedness, and that that vested in the creditor. And when the instrument evidencing the indebtedness was separated from the domicile of the creditor, and the court had to determine which of the two places should be taken as the situs of the property (namely, the indebtedness), the statute does not provide that the settled rule should not apply, as had been the law prior to this time — that is, that the situs of such indebtedness should be at the residence of the *604debtor, rather than at the location of the instrument evidencing the indebtedness.
Considering the debt or demand due to the creditor as property, ■ it is clear that the obligation to paya debt cannot be separated from the debt itself so as to make two separate and distinct pieces of property, one a debt and the other the obligation to pay the.debt.■ The debt and the writing creating or evidencing the obligation to pay the debt, together constitute the specific property which vests in the creditor, and which is the right to receive from the debtor the amount due. And the question is, where is that right to receive the amount due actually situated ? There is nothing in this act under which this tax is imposed to show that the Legislature intended to give a different situs to property in subdivision 1 than it did to property in subdivision 2. Subdivision 1 has been expressly construed to include all personal property, wherever situated, which vested in a resident of this State, on the ground that the legal situs of such property is at the residence of its owner. ' Nothing that is contained in the act justifies us in assuming that it was intended by section 2 of the act to. change that rule and to say that the situs of personal property of non-residents was elsewhere than was the situs of the personal property of residents as applied to such a piece of property as a debt or demand due to an individual. On the contrary, the construction given by the Court of Appeals to this section in the case of Matter of James (supra) clearly indicates that such an intention was not to be assumed from the language of the act in question.
The next question is as to the right of the State to tax the United States bonds, or to tax the transfer of the United States bonds. In determining this question it should be noticed that the act in question is entitled “ An act in relation to taxable transfers of property,” and section 1 of the act provides : “ A tax shall be and is hereby imposed upon die transfer of any property, real or personal, ” etc. Has this State a right to tax the transfer of, or right of succession to, bonds issued by the United States? This question, ■I think, is clearly settled by the Supreme Court of the United States. In. the case of Weston v. City Council of Charleston (2 Pet. 460) an ordinance of the city couhcil of Charleston was passed imposing a tax of twenty-five cents upon every $.1,000 of all *605personal estate consisting of six and seven per cent stock of the United States; and the Supreme Court of the United States, Marshall, Ch. J., delivering the opinion, held that the act was unconstitutional. The ■ court thus states the question : “ Is the stock issued for loans made to the government of the United States liable to be taxed by States and corporations? ” And in holding that the ordinance was in conflict with the Constitution, he said: “ The American people have conferred the power of borrowing money on their government, and, by making that government supreme, have shielded its action in this power from the action of the local governments. ,The grant of the power is incompatible with a restraining or controlling power, and the declaration of supremacy is a declaration that no such restraining or controlling power shall be exercised. The right to tax the contract to cmy extent, when made, must operate upon the power to borrow before it is exercised, and have a sensible influence on the contract. The extent of this influence depends on the will of a distinct government. To any extent, however inconsiderable,, it is a burden on the operations of government. It may be carried to an extent which shall arrest them entirely. * * * The tax on government stock is thought by this court to be a tax on the contract, a tax on the power to borrow money on the credit of the United States, and, consequently, to be repugnant to the Constitution.”' In the case of Bank of Commerce v. New York City (2 Black, 628) it was held that this principle applied to an act taxing the capital of a bank organized under the laws of the State of New York,, where a portion of the capital of the bank was invested in United States stock, and the difference was noted between the ordinance of the city of Charleston and the law of New York, which “consists in the circumstance that the tax in the former case was imposed on the stock, eo nomi/ne, whereas in the present it is taxed in the aggregate of the taxpayer’s property, and .to be valued at its real worth in the same manner as all other items of his taxable property.” It was still held' that it was a tax upon the power of the United States to borrow money and was repugnant to the Constitution. And in the Bank Tax Case (2 Wall. 200) this principle was applied to an act by which a tax was imposed on a valuation equal to the amount of the capital paid in or secured to be paid in by a State bank, and it was held that where a portion of the capital of the *606bank was invested in the stock of the United States, it was a tax ■ upon tile property of such bank. The court then said : “ Having come to the conclusion that the tax on the capital of the Bank of the Commonwealth is a tax on the property of the institution, and which consists of the stocks of the United States, we do not perceive how the case can be distinguished from that of The Bank of Commerce v. New York City (2 Black, 620).”
“That the bonds Or obligations of the United'States * * * cannot be the subject of taxation by a State is familiar law. * * * It is a tax upon the exercise of the power of Congress to borrow money. * * * Nor can this inhibition upon the States be evaded by any change in the mode or form of .the taxation, provided the same result is effected. . That is, an impediment is thereby interposed to the exercise of a power of the United States. That which cannot be accomplished directly cannot be accomplished indirectly. Through all such attempts the court will look to the end sought to be reached ; and if that would trench upon a power of the government, the law creating it will be set .aside, or its enforcement restrained.” (Home Ins. Co. v. New York, 134 U. S. 598.)
In these cases the principle was applied, that any tax, direct •or indirect, upon stock of the United States, or upon money or property invested in the stock of the United States, was repugnant to the Constitution of the United States, as being a -tax upon the power granted to the government of the United States to borrow money ; and, thus, such bonds or stocks were property over which the State had no jurisdiction for the purpose of taxation. This statute, in express terms, imposes a tax upon the transfer of the property; and it seems too clear for argument that a tax upon a transfer of property, or a right to receive or own property, is- a tax upon the property within the principle thus settled. So far as it affects the power of the United States, it is just as much an interference with that power to tax the transfer of the stock as to tax the' stock itself; and it clearly follows, I think, that over this stock of the United States this State had no jurisdiction for the purpose of taxation.
The order of the surrogate should, therefore, be reversed and the proceedings remitted, with instructions to strike out' the bonds and *607stock mentioned in the notice of appeal of the executors from the property subject to taxation, with costs and disbursements in favor of the appellants.
Yan Brunt, P. J., concurred.
Order affirmed, with costs.