be carried out." The court cites the Illinois, Iowa and New York decisions as supporting this conclusion, and declines to follow the Pennsylvania decisions."

§ 163. Compromise of Will Contest Other Decisions. In Nebraska it is affirmed that real estate devised by will passes to the devisee at the death of the testator, and its status under the law taxing inheritances is fixed at that time, so that an agreement between the devisees to satisfy a claim against the estate in favor of one of them by a conveyance of a portion of the property to the claimant will not exempt it from the inheritance tax.13

In Tennessee, where the testator left all his property to his widow, collateral heirs contested the will, and procured it to be set aside, but the case was reversed on appeal and remanded, and the widow then proposed to deed one-half of the property to the contestants if they would withdraw the contest, which proposition was accepted, it was held that the collateral representatives did not derive title from the decedent, but from the deeds of the widow, and that no collateral inheritance tax was due.11

In Colorado, where the sole heir of the testator contested the will because it made him a less liberal allowance than the statute, and the executor paid him a sum in addition to his legacy in consideration of a withdrawal of the contest, it was decided that the sum thus paid was subject to the tax.15

Cases somewhat analogous to the above have arisen when taxes under United States internal revenue laws have been sought to be imposed on money received

12 Baxter v. Stevens, 209 Mass. 459, 95 N. E. 854. But see the last paragraph of the next section.

18 Estate of Sanford (Neb.), 133 N. W. 870.

14 English v. Crenshaw, 120 Tenn. 531, 127 Am. St. Rep. 1025, 110 S. W. 210.

15 People v. Rice, 40 Colo. 508, 91 Pac. 33.

as the result of a compromise in a will contest, and it has been affirmed that money thus received does not fall within the category of "legacies" or "distributive shares" subject to the federal internal revenue tax.16 Where an instrument offered as a will is not admitted to probate, but contested proceedings therefor are compromised as authorized by the Massachusetts statute, and the estate is distributed pursuant to the compromise decree, this compromise is deemed the will under which the property passed for the purposes of the federal war revenue act of 1898, and the tax due thereunder is determined accordingly."

§ 164. Renunciation or Waiver of Legacy. Since a legacy does not become effective until accepted, there is no transfer thereof to which an inheritance tax will attach if the legatee waives or renounces the legacy, but the succession thereupon becomes taxable, if at all, in accordance with the ultimate devolution of the property. "If no transfer is effected because it turns out that there is no property to transfer, no tax can be collected, and, if the legatee renounce the gift and refuse to receive it, no tax can be collected with respect to him, because there has been no transfer to him. His right to renounce the privilege of accepting the donation is not denied or forbidden by the statute, and such right is recognized by the authorities. . . . . On his effective renunciation the title to, or ownership of, the property of the gift remains in the estate to be disposed of under the terms of the will and the succession is taxable in accordance with the nature of the ultimate devolution. . . . . Assuming the right of an individual to reject proffered bounty, whether tendered by deed to take effect at the grantor's death, or by will, I can see no good rea

16 Page v. Rives, 1 Hughes, 297, Fed. Cas. No. 10,666.

17 McCoy v. Gill, 156 Fed. 985.

son for applying the provisions of the tax law to a mere abortive attempt at a transfer as well as to the consummated act.'' 18

19

In a recent Iowa case it is affirmed that the state cannot collect a collateral inheritance tax on a legacy which has been waived by the collateral legatee.' This decision is in affirmance of an earlier case holding that a contract between the beneficiaries in a will, including a collateral legatee, whereby the provisions of the will are renounced and a division of the property provided for, is valid, notwithstanding its effect is to deprive the state of a collateral inheritance tax otherwise collectible upon the legacy to the collateral legatee.20

§ 165. Compensation to Executor or Trustee. The statutes usually provide that when a testator makes a bequest or devise to his executors or trustees in lieu of commissions or compensation, the excess of this gift over and above a reasonable compensation for their services is subject to the inheritance tax.20 Accordingly, where a testator directs that his executor and trustee be paid an annual sum, together with the commissions allowed by law, so long as he should act, in full compensation for his services, and he accepts the annual sum, it is subject to the transfer tax.21

18 Estate of Cook, 187 N. Y. 253, 79 N. E. 991; Estate of Wolfe, 89 App. Div. 349, 85 N. Y. Supp. 949, affirmed, 179 N. Y. 599, 72 N. E. 1152.

19 Morrow v. Durant, 140 Iowa, 437, 17 Ann. Cas. 850, 23 L. R. A., N. S., 474, 118 N. W. 781.

20 Estate of Stone, 132 Iowa, 136, 10 Ann. Cas. 1033, 109 N. W. 455.

20 Estate of Gould, 19 App. Div. 352, 46 N. Y. Supp. 506, 48 N. Y. Supp. 872, 156 N. Y. 423, 51. N. E. 287; Estate of Vanderbilt, 68 App. Div. 27, 74 N. Y. Supp. 450, 71 App. Div. 611, 75 N. Y. Supp. 969, 172 N. Y. 69, 04 N. E. 782.

21 Estate of Huber, 86 App. Div. 458, 83 N. Y. Supp. 769.

But a bequest to an executor of a stated sum "over and above his legal commissions and expenses," has been held to be not within the statutory provision that when a bequest is made in lieu of commissions the excess thereof above reasonable compensation is subject to the inheritance taxation.22 Neither does such provision apply where the testator gives legacies to his executors, but not in lieu of commissions, and directs that no compensation shall be made them for their services.28

In Maryland, where executors were appointed under the will of a testator who died March 27, 1845, their commissions were held subject to the tax imposed by the act of 1844, which did not go into effect until June 2, 1845.24

22 Matter of Underhill, 2 Con. Sur. 262, 20 N. Y. Supp. 134. 23 Estate of Vanderbilt, 68 App. Div. 27, 74 N. Y. Supp. 450. 24 Williams v. Mosher, 6 Gill (Md.), 454.

CHAPTER XI.

SITUS OF PROPERTY-NONRESIDENCE OF PARTIES.

170. In General.

§ 171. Real Estate.

§ 172. Personal Property-Nonresidents.

§ 173.

Personal Property in Foreign States.

§ 174. Marshaling Assets-Massachusetts Rule.

§ 175. Marshaling Assets-New York Rule.

§ 176. Marshaling Assets-New Jersey Rule.

§ 177.

§ 178.

Money and Deposits in Banks or Trust Companies.
Debts Due Nonresident.

§ 182. Stock in Domestic Corporations.

§ 183. Stock in Corporation Organized in Two States. § 184. Stock in Foreign Corporations.

§ 170. In General.-In the administration of inheritance tax statutes no more difficult question is likely to arise than the determination of the situs of property. Of course when property is actually located in the state of the owner's domicile at the time of his death, the dominion over it, the transmission of it, and hence the taxation of its transfer, are governed exclusively by the law of that state; but when the property is in fact located in one state and the owner dies domiciled in another, problems are presented that do not lend themselves to easy solution. The tendency in many states has been to tax all personal property within its territorial boundaries, notwithstanding it may be owned by nonresidents; and also to tax all personal property of its residents, notwithstanding its actual location may be without the state. With respect to the same personalty, one state imposes a succession tax in accordance with the theory that the situs of personal estate is the domicile of the owner, while another state imposes it because the actual situs