In re the Appraisal Under the Act in Relation to Taxable Personal Property of the Property of James

Pollett, J.:

It seems to have been settled that in case a resident citizen of another State or country and domiciled therein dies, leaving personalty within this State, it, or the right to succeed to it, is taxable under chapter 713 of the Laws of 1887 (Matter of Estate of Romaine, 127 N. Y. 80), and in case a resident citizen of this State and domiciled therein dies, leaving personalty in another State or conntry, it, or the right to succeed to it, is taxable under that act. (Matter of Estate of Swift, 137 N. Y. 77.) Under these decisions the property of the testator within this State passing to foreign *214legatees is taxable under the act above mentioned. It is alleged in the petition that the foreign legatees have been paid out of the property of the testator in England, but whether this allegation is true or false was not determined by the appraiser nor by the Surrogate’s Court, nor does it appear whether these legacies were paid before or after the will was established in this State. If the legacies bequeathed to the foreign legatees were paid out of property in England those legatees have not succeeded to any property in this State, nor has any property passed to them by virtue of the laws of this State, and their right of succession is not taxable under this act. This does not affect the amount of revenue derivable from the property within this State, because the residue is increased and becomes taxable. It has been held (Matter of Swift, supra) that the right to succeed to personalty situate in another State and owned by a resident citizen of this State at the time of his death is taxable under the act, but, so far as we know, it has never been held that the right to succeed to personalty situate in another State and owned by a decedent who never resided nor had been domiciled in this State is taxable under the act. It appears from the facts found by the appraiser that a considerable portion (the amount not stated of the testator’s personalty found to have been within this State at the date of his death) consists of shares in corporations incorporated under the laws of other States, the value of which was included in the total valuation of $2,250,979.64. Under the evidence, presumably the certificates representing these shares were in this State when the testator died, though it was not so expressly found. These certificates are not shares nor property under the laws relating to taxation, nor under the sections of the Code relating to attachments; they are merely evidence of title to the shares. (Matter of Enston, 113 N. Y. 174, 181; Plimpton v. Bigelow, 93 id. 592, 600; Burr v. Wilcox, 22 id. 551; Van Allen v. Assessors, 3 Wall. 597, 598, 599; Winslow v. Fletcher, 53 Conn. 390; Haley v. Brumagim, 33 Cal. 394, 399; Cook Stock & Stockholders, § 10.) The testator not being a citizen of this State, and the property represented by the certificates not béing therein at the time of his death, it is not, nor is the right to succeed to such property, taxable under chapter 713 of the Laws of 1887, and the Surrogate’s Court erred in including it in the amount from which the ratio was found.

*215The decree of the Surrogate's Court should be reversed, with costs to the appellant, and a new hearing granted in that court.

Yan Brunt, P. J., and O’Brien, J., concurred.

Decree reversed, with costs to appellant, and new hearing granted.