The tax sought to be recovered in this matter is upon property within this State passing by will, and therefore is within the terms of the act, chapter 483, laws of 1885.
While the grammar of section one of .that act is questionable, yet I think the meaning of the law is not doubtful. If it was, then in view of the policy of encouraging the migration of foreign capital into this State (William v. Board of Supervisors, 78 N. Y., 565), and because taxation may be imposed here and in Pennsylvania upon the same property, the act in question might by construction be limited to embrace only the property of residents of this State passing by will or the intestate laws of this State; but where acts of this character have been restricted by construction, the courts have proceeded upon the ground that the legislature had not sufficiently expressed its intention to depart from theretofore well settled rules as to taxation (Thompson v. Advocate General, 12 Cl. & Fin., 1; Wallace v. Attorney, L. R., 1 Ch., 1; U. S. v. Hunnewell, 13 Fed. Rep., 617).
I think it was intended to subject to taxation all property within this' State passing by will (to other than certain excepted persons) without regard to the residence of the ancestor, and the provisions of sections eleven and fifteen of the act in question sup*97port this construction. It is conceded for the executors that property passing by grant to take effect at the grantor’s death is subject to the tax, without reference to the residence of the grantor, and that the tax on property so transferred was designed to prevent an evasion of the tax by resort to such conveyance. It would follow, if the construction contended for by the executors was allowed, that property of a non-resident passing by will would be free of tax, ■while property passing by grant from a non-resident, to take effect in possession at the death of the grantor, would be liable to taxation.
I am of the opinion that both real and personal property within this State passing by the will of the testatrix is subject to the tax.