dissenting:
In re Bronson, deceased, 150 N. Y. 1, 44 N. E. 707, 34 L. R. A. 238, 55 Am. St. 632, decided October the 6th, 1896, it was held that bonds of domestic corporations owned by, and in possession of, a non-resident decedent at his domicile at the time of his death, and which then passed to non-residents by will or the law of descent in the state where he lived, were not subject to taxation in New York under that portion of its transfer tax act which reads, “When the transfer is by will or intestate law, of property within the state, and the decedent was a non-resident at the time of his death.” In construing this language, the court considered with it and gave emphasis to section 22 of the New York act which defines the word “property” as meaning all property or interest therein over which the state had jurisdiction for the purposes of taxation. A very able dissenting opinion was rendered by Justice Vann, concurred in by Justice O’Brien; the majority opinion was written by Justice Gray.
In re Houdayer, deceased, 150 N. Y. 37, 44 N. E. 718, 34 L. R. A. 235, 55 Am. St. 642, the same court held that individual deposits of a non-resident decedent in a trust company in that State were subject to this tax under the same act. The opinion was by Justice Vann, and per his reasoning, it was a debt owing by the trust company to the non-resident decedent, yet regardless of this he held it was *152property within the state so far as the transfer act or inheritance tax law so-called was concerned, it being agreed by all (and is conceded here) that it is not a tax upon property, but rather upon the right to receive it. Justice O’Brien concurred with Justice Vann; Chief Justice Andrews and Justices Bartlett and Martin concurred in the result, upon the theory that a deposit of money in a bank, although technically a debt, is still money for all practical purposes, and as such was taxable under the transfer act. Justice Gray filed a dissenting opinion, in which Justice Haight concurred, to the effect that the trust company was a mere creditor of the decedent, and for that reason that it did no constitute property within the state, so far as their transfer act was concerned. I am unable to harmonize the two opinions, or to gather from them sufficient upon which to hazard a guess as to what the future position of that court will be on similar questions. The former of these cases is the only case cited in Vol. 37 Cyc. 1562, to sustain its statement set forth in the opinion of the court here, to the effect that the right to inherit these bonds, when held by a non-resident in another state, is not subject to such a tax in the state where issued, and where the lands covered by the mortgage to secure them is situate.
• In Blackstone v. Miller, 188 U. S. 189, 47 L. ed. 439, 23 Sup. Ct. 277, it was held that a deposit by a citizen of Illinois in a trust company in New York was subject to the transfer tax in New York, notwithstanding that the whole succession had been taxed in Illinois, including this deposit. This opinion was not upon the theory of the three members concurring in the opinion in the New York case last referred to, but to the contrary takes the position of Justices Vann and Gray, that the relation was that of debtor and creditor, but disagreed with the latter as to the result which should follow. For instance, the court says, “What gives the debt validity? Nothing but the fact that the law of the place where the debtor is, mill make him pay.” And again “Power over the person of the debtor confers jurisdiction we repeat. And this being so, we perceive no better *153reason 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.”
In commenting upon State Tax on Foreign Held Bonds, 15 Wallace 300, 21 L. ed. 179, the court distinguished it from this class of cases and, among other things, said:
“The taxation in that case was on the interest on bonds held out of the state. Bonds and negotiable instruments are more than merely evidences of debt. The debt is inseparable from the paper Avhich declares and constitutes it, by a tradition which comes down from more archaic conditions. Bacon v. Hooker, 177 Mass. 335, 337, 58 N. E. 1078, 83 Am. St. 279. Therefore, considering only the place of the property, it was held that bonds held out of the State could not be reached. The decision has been cut down to its precise point by later cases.”
For the reason last stated, and the fact that the case referred to was concerning a tax on property, and not a tax upon the right to inherit it, I do not think it applicable here. In State v. Probate Court, 128 Min. 371, 150 N. W. 1094, L. R. A. 1916 A 901, it was held that a promissory note, as well as a book account, of a Minnesota corporation held by a resident of Pennsylvania and who died with the note in his possession in the latter state, was subject to a tax upon the right to succeed to the ownership of said property in Minnesota under the language of their act, which reads:
“When a transfer is by will or intestate law, of property within the state or within its jurisdiction and the decedent was a non-resident of the state at the time of his death.”
This case goes into the history of the question in detail, showing that the right to succeed to ownership is taxable by the state having jurisdiction of the debtor, for the law of that state furnishes the means to compel payment, etc. While the Minnesota act has these additional words not contained in our act, viz: “or within its jurisdiction,” I can not see that they add anything to its scope. The words “within this jurisdiction” are used alternately with the words “within the State” and to my mind mean “within *154the State.” The reasoning of the Minnesota court gives no extra effect to them, but is just as applicable to the paragraph had they been omitted.
In Re Rogers’ Estate, 149 Mich. 305, 112 N. W. 931, 11 L. R. A. (N. S.) 1134, 119 Am. St. 677, the court held that notes secured by mortgages on lands in Michigan given by residents of that state, owned by a non-resident and held by him at his home in New York at the time of his death, were subject to an inheritance tax in Michigan under the provisions of their act which reads “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.” This is the exact language of our act. Theirs was passed in 1903, ours in 1913. Their decision placing a construction thereon was announced July 15,1907. Hence, long before our legislature adopted the exact language of the Michigan act, it had before it the construction of the Michigan court thereon, holding that it made subject to this tax a note held by a non-resident given by a citizen of their state when secured by a mortgage upon lands within the state.
The holding in Kinney, executor v. Treasurer, 207 Mass. 368, 93 N. E. 586, 35 L. R. A. (N. S.) 784, Ann. Cas. 1912 A 902, is to the same effect as the Michigan court, under & somewhat similar statute. In commenting, the court said:
“The question before us is whether these securities are property within the jurisdiction of the common wealth, in reference to taxation upon the succession * * *. The debt belongs with the mortgage, and it must co-exist to give the mortgage validity. For that purpose it has a situs, within the jurisdiction of the State where the land lies.”
The only distinction between the two cases last cited and this is that the bonds under consideration are payable to bearer, but for the purposes of this tax it appeals to me that it is a distinction without a material difference. All the authorities that I have been able to find are to the effect that under similar language the right to succeed to ownership of stock of a domestic corporation held by a non*155resident is subject to this tax. The Minnesota case applies it to an unsecured note as well as a book account, the Massachusetts and Michigan cases to notes secured by mortgages, the Supreme Court of the United States case to a bank deposit, on the theory of simple debtor and creditor. The reasoning in all is to the effect that the situs of the property for the purpose of this tax is at the domicile of the debtor or where the property covered by the mortgage is situate. In such circumstances, when the language of our act is considered as a whole, I am of opinion, as said by Mr. Justice Holmes in Blackstone v. Millet, supra,, concerning the New York act that it was intended to reach the transfer of this property if it can be reached. The opinion, as I understand it, concedes that it can be reached by appropriate legislation. I am of opinion that it has already been reached by the language used. Whether ancillary administration is in progress or not, in my opinion, makes no difference. The question to be determined is, whether our act has attempted to, or whether we can, tax the right or privilege to inherit or succeed to such property. This should be determined by conditions as they exist at the time of the death of the testator. Such being the case, I am unable to appreciate wherein the question of ancillary administration cuts any figure, pertaining to the construction which should be given to our act: It might aid the collection of this tax, but I cannot agree that there should be any difference in the rule to be applied to the same class of property simply because one estate has ancillary administration pending and the other has not. The fact that these bonds can be transferred by delivery in another state, in my opinion, makes no difference, they are not money. A note endorsed in blank can be thus transferred, and if secured by mortgage, per former ruling of this court, such a transfer carries with it the equitable right to have the mortgaged property disposed of in satisfaction of the debt. A bond of the kind under consideration is but a promise to pay and is in a sense but a promissory note. It is common knowledge that stocks in domestic corporations are quite often endorsed in blank by the *156person to whom issued, and thereafter sold and transferred by delivery through the hands of numerous persons, I can think of no reason why a book account may not be thus assigned to bearer and pass title accordingly. If it is for the reason that the bonds are payable to bearer that they are exempt from this tax, then, in my opinion, it is a reason which sacrifices substance to form.
Decided January 7, A. D. 1918. Rehearing denied April 1, 1918.