I concur in the opinion of Mr. Justice Ingraham concluding that " the proceeds of the policy in suit issued by a domestic life insurance company to a non-resident policyholder and payable on his death to his estate are not taxable under the Transfer Tax Law.
Assuming that the amount stipulated by the policy is a debt becoming due and payable in this State to the estate of a foreign policyholder on his death, I do not understand that the courts of this State have yet decided that such a debt comes within the provisions of that act. Bonds of a domestic corporation owned by a non-resident decedent and not in this State at the time of his death, although debts of a resident due to a non-resident, have been distinctly held not subject to taxation. (Matter of Bronson, 150 N. Y. 1.) By the same case shares of stock in such a corporation held in the same manner were decided to be subject to taxation because the stockholder owned a distinct interest in the corporate property situated in this State. Deposits of money by a non-resident in a domestic bank or trust company or with individual bankers or brokers have been' held taxable on the ground that such deposits are money; and, although the relation between the depositor and the bank was technically that of creditor and debtor, still, for the pur*209poses of taxation under the act, it could he and should be treated as money and lienee property within the State and not a debt due. (Matter of Houdayer, 150 N. Y. 37; Matter of Blackstone, 69 App. Div. 127; affd., 171 N. Y. 682, and affd. by the Supreme Court of U. S., sub nomine, Blackstone v. Miller, 188 U. S. 189 ; Matter of Daly, 100 App. Div. 373; affd., 182 N. Y. 524; Matter of Hewitt, 181 N. Y. 547.)
In Matter of Houdayer (supra) two of the judges dissented from the prevailing opinion and the decision of the majority of the court was expressly stated to be put upon the ground that the deposit in the bank retained its character of money for the purposes of taxation, and such was the actual ground of decision of all of the cases above cited.
It is true that in Blackstone v. Miller (supra) the power to tax is discussed by the Federal Supreme Court upon the broad ground that the depositary was a debtor residing within the State of New York and that the creditor was subject to its laws with respect to enforcing the obligation due him. It was not, however, necessary to put the decision upon this ground, for in that case both amounts of money sought to be taxed had been deposited, the larger amount with a trust company and the smaller amount with individual bankers.
In Matter of Clinch (180 N. Y. 800) this decision is commented upon, but I do not understand our Court of Appeals to have adopted that decision in its entirety. Until compelled to do so by an unequivocal holding of that court to that effect, I am not disposed to subscribe to the doctrine that a simple debt due from a resident debtor to a non-resident creditor, although payable in this State, the evidence of which is not within this State at the time of the creditor’s decease, -is taxable under the Transfer Tax Law. The facts in the Clinch case required no such holding, for the will under the legacy passed, was admitted to probate in this State, and the legacy was finally paid in this State from funds located here, to the executors of the deceased legatee, whose will was also admitted to probate here. All the property, therefore, which was transferred was within this State at the decease of the legatee.
It may also well be said that it was not within the intent of the Legislature to tax moneys to become due from domestic life insur*210anee companies to tlie estates of foreign policyholders. A very large proportion of the great life insurance companies of the country have their domicile in this State. Their proper management and prosperity is a matter of public and legislative concern. Insurance of one’s life for the benefit of one’s family or estate has been supposed to be a guard against indigence and want, and a form of thrift to be encouraged. Many policies are written, for financial and other reasons, payable to the representatives of the estate of the insured, who intends that the avails of his policy shall be paid to his widow and children as though payable directly to them. If the proceeds of such a policy are to be taxed in this State on his. death, would-be policyholders in other States might be deterred from insuring at all with companies located here. The Legislature could hardly have intended to enact a law detrimental to our own companies in the prosecution of their legitimate business. If' the proceeds of such a policy are taxable it logically follows that a mere commercial debt due from a resident buyer to a non-resident seller, who may die before it shall be paid, is also taxable.
I do not think it follows because the proceeds of a policy payable to the estate of a resident policyholder are taxable, that the debt due the estate of a non-resident policyholder is also taxable. In the case of the resident policyholder his estate is swelled by the amount of the policy, and is administered and distributed in its enlarged form as though the money had been acquired from any other source. With respect to the non-resident policyholder, the administration and distribution is in another forum, after the claim held by the estate shall have been collected.
For these reasons, as well as those advanced in the prevailing opinion, I concur in the reversal and modification of the decree of the surrogate.