Opinion
Argued April 21, 1896
Decided October 6, 1896
George L. Rives for executors, appellants.
Emmet R. Olcott, Jabish Holmes, Jr., and Edgar J. Levey for the comptroller of the city of New York, respondent.
The decedent died on the 17th of December, 1894, a resident of Lakewood, New Jersey, leaving a will by which he gave substantially all of his estate to certain nieces and their children. His will was admitted to probate in the city of New York on the 5th of April, 1895. His personal property, valued at $239,931.14, consisted of stocks and bonds of foreign and domestic corporations, mortgages upon lands in this state, and moneys deposited in banks in this state. All of the securities, with some unimportant exceptions, were habitually kept by the decedent in a safe deposit vault in this state, in charge of an agent in this state. The stocks of foreign corporations were excluded by the appraiser, while the bonds of foreign corporations were included by him. The decision of the surrogate, sustaining the appraisal, was affirmed by the Appellate Division upon the same grounds as in the Whiting case. There is no distinction between the two cases, except that in the latter it did not appear whether the foreign bonds were registered or coupon, while in the case in hand there were both kinds. I think that the decision of this case is governed by the rules laid down in the Whiting and Houdayer cases, and that further discussion of the subject is unnecessary.
The order appealed from should be affirmed, with costs.
There is no other difference between this and the Whiting case than that, in the present case, it appears that some of the bonds of the foreign corporation, which were owned by the non-resident decedent, were registered. The legal proposition, which must determine the question of taxation, cannot be affected by the fact that the negotiability of the corporate bonds, or obligations, is withdrawn by registering upon the corporate books the name of their owner, and by writing his name upon them.
I think the order appealed from should be reversed, with costs.
O'BRIEN, J., concurs with VANN, J.; ANDREWS, Ch. J., BARTLETT and MARTIN, JJ., concur in result of opinion of VANN, J.; HAIGHT, J., concurs with GRAY, J.
Order affirmed.