Argument for Defendants in Error.

Downes v. Phonix Bank of Charlestown, 6 Hill, 297; Payne v. Gardiner, 29 N. Y. 146; Howell v. Adams, 68 N. Y. 321; Munger v. Albany City National Bank, 85 N. Y. 587; Boughton v. Flint, 74 N. Y. 482; Smiley v. Fry, 100 N. Y. 265; Dickinson v. Bank, 152 Massachusetts, 49, 55; Girard Bank v. Penn Township Bank, 39 Pa. St. 92, 98, 99; United States v. Wardwell, 172 U. S. 48, 54, 55; Parker, Tax Collector, v. Strauss & Co., 49 La. Ann. 1173.

Treating this fund as a debt, for all practical purposes it was property within the State of New York. Section 649 of the Code of Civil Procedure; Dunlop v. Paterson Fire Ins. Co., 12 Hun, 627, aff'd 74 N. Y. 145; Douglas v. Phoenix Ins. Co., 138 N. Y. 209; Embree v. Hanna, 5 Johns. 100; Williams v. Ingersoll, 89 N. Y. 508, 529; Carr v. Corcoran, 44 App. Div. 97; Simpson v. Jersey City Contracting Co., 165 N. Y.-193; Chicago, Rock Island & Pacific Railway Company v. Sturm, 174 U. S. 710, and cases there cited.

Before this fund could be distributed at the place of the decedent's domicil, such distribution could only be made through the aid of the New York courts by means of administration there, of the debt owing to the decedent; and title was, therefore, derivable through such administration.

The rule is established by a uniform line of authorities that an executor or administrator appointed in one State cannot as such sue, or be sued, in his representative capacity in another. Hopper v. Hopper, 125 N. Y. 402; Lawrence v. Lawrence, 3 Barb. Ch. 74; Matter of Webb, 11 Hun, 124; Fiandrow v. Hammond, 13 App. Div. 325; Johnson v. Wallis, 112 N. Y. 230; Petersen v. Chemical Bank, 32 N. Y. 22, 40. Similar rules in other States. Greves v. Shaw, 173 Massachusetts, 205; S. C., 53 N. E. Rep. 372; Judy v. Kelley, 11 Illinois, 211; MeGarvey v. Darnall, 134 Illinois, 367; S. C., 25 N. E. Rep. 1005; Johnson v. Powers, 139 U. S. 156; Stacy v. Thrasher, 6 How. 44, 58; Noonan v. Bradley, 9 Wall. 394; Vaughan x. Northrup, 15 Pet. 1; Aspden v. Nixon, 4 How. 467; Reynolds v. Stockton, 140 U. S. 254, 272; Lawrence v. Nelson, 143 U. S. 222; Overby v. Gordon, 177 U. S. 222; Wyman v. Halstead, 109 U. S. 654, 656; Chicago, Rock Island &c. Ry. v. Sturm,

Argument for Defendants in Error.

174 U. S. 714. Succession tax has some of the characteristics of a duty on the administration of the estate of the deceased persons. Minot v. Winthrop, 162 Massachusetts, 113; Frothingham v. Shaw, 175 Massachusetts, 59, 61.

Such duties are levied in respect of the control which every government has over property within its jurisdiction, irrespective of the domicil of the decedent. Laidley v. Lord Advocate, 15 App. Cases, 468, 483; Hanson on Death Duties, 2, 63.

II. If the funds in question are to be regarded as money of the decedent within the State, in accordance with the decision in the Houdayer case, then no question as to the validity of the tax can arise, since it must be conceded that it was within the power of the New York legislature to place a succession tax upon the tangible property within the State of a non-resident decedent. Callahan v. Woodbridge, 171 Massachusetts, 595; In re Romaine, 127 N. Y. 80; Matter of Whiting, 150 N. Y. 27; Albany v. Powell, 2 Jones' Eq. 51, and cases cited under point III.

III. As the legislature of New York intended to bring within its taxing power deposits made with residents of New York by non-residents for the purposes of assessing a succession tax upon the estate of the latter, as declared in the Houdayer case, it is within the power of such legislature to create a situs for such property within the sovereignty of New York for purposes of taxation.

It is doubtless true that under the legal fiction embodied in the maxim mobilia personam sequuntur personal estate is deemed to have no situs separate from the person or residence of the owner, and it is on the basis of this maxim that it is claimed that debts and choses in action can have no situs other than that of the creditor.

This fiction is not, however, superior to the legislative power and has been so frequently disregarded in legislation that it has become practically exploded. This is illustrated by the attachment laws, to which reference has already been made, and is demonstrated by a long line of decisions in various jurisdictions affecting the subject of taxation, citing New York decisions as follows: People ex rel. IIoyt v. Commissioners of Taxes,

Argument for Defendants in Error.

23 N. Y. 224; People ex rel. Westbrook v. Board of Trustees of the Village of Ogdensburgh, 48 N. Y. 390; Matter of Romaine, 127 N. Y. 80, 86; People ex rel. Jefferson v. Smith, 88 N. Y. 576, 581; Kirkland v. Hotchkiss, 100 U. S. 491; Matter of Whiting, 150 N. Y. 30. Decisions of this court: Hervey v. R. I. Locomotive Works, 93 U. S. 664, 671; Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139, citing Warner v. Jaffray, 96 N. Y. 254, 255; Walworth v. Harris, 129 U. S. 365; Security Trust Co. v. Dodd, 173 U. S. 628; Pullman's Car Co. v. Pennsylvania, 141 U: S. 18, 22, and cases cited; Savings Society v. Multnomah County, 169 U. S. 421, and other cases already cited; Clason v. New Orleans, 46 La. Ann. 1; Parker, Tax Collector, v. Strauss & Co., 49 La. Ann. 1173; Bristol v. Washington Co., 177 U. S. 133; Eidman v. Martinez, 184 U. S. 578, and cases cited; Moore v. Ruckgaber, 184 U. S. 593. Decisions in other jurisdictions Greves v. Shaw, 173 Massachusetts, 205; S. C., 53 N. E. Rep. 372; In re Small's Estate, 151 Pa. St. 1; S. C., 25 Atl. Rep. 23; Kingman County Commissioners v. Leonard, 57 Kansas, 531; S. C., 34 L. R. A. 810; Allen v. National State Bank, 92 Maryland, 509; S. C., 52 L. R. A. 760.

From these decisions the rule is deducible that it is within the power of the State to which resort must be had for the purpose of reducing to possession property of a decedent, whether a resident or a non-resident, by those succeeding to his ownership, to impose such restrictions and conditions on the rights of succession as it may see fit to create, whether the property to be reduced to possession is tangible or intangible, real or personal, and even though it may be a mere credit. United States v. Perkins, 163 U. S. 625; State v. Dalrymple, 70 Maryland, 294; Plummer v. Coler, 178 U. S. 115, 130, 137; Magoun v. Ill. Trust & Sav. Bank, 170 U. S. 288. State Tax on Foreign Held Bonds, 15 Wall. 300, distinguished.

IV. The statute on which the tax is predicated does not impair the obligation of the contract. Pinney v. Nelson, 183 U. S. 144, 147; Lehigh Water Co. v. Easton, 121 U. S. 388, 391; Central Land Co. v. Laidley, 159 U. S. 103, 111; McCullough v. Virginia, 172 U. S. 102, 116.

V. The tax is not rendered unconstitutional because there is

Argument for Defendants in Error.

a possibility that the decedent's estate may be subjected to double taxation.

There is no provision of the Federal Constitution governing state taxation, which forbids unequal or double taxation. Davidson v. New Orleans, 96 U. S. 97, 106; Dyer v. Osborne, 11 R. I. 321; S. C., 23 Am. Rep. 460; Frothingham v. Shaw, 175 Massachusetts, 59, 61; People v. The Home Insurance Co., 92 N. Y. 347, affirmed 119 U. S. 129; Coe v. Errol, 116 U. S. 524.

The war tax on inheritances was sustained in Knowlton v. Moore, 178 U. S. 53, although the State had likewise imposed a tax on the same inheritance, although it was recognized that the transmission of property by will or intestacy is within the exclusive province of state and not Federal regulation.

VI. The decision sought to be reviewed does not deny full faith and credit to any public acts, records or judicial proceedings in the State of Illinois. Bonaparte v. Tax Court, 104 U. S. 592; C. N. Nelson Lumber Co. v. Town of Loraine, 22 Fed. Rep. 60; Johnson v. Powers, 139 U. S. 156.

VII. The statute does not deprive the plaintiff in error of any of the privileges and immunities of citizens of the State of New York.

The act under consideration seeks to tax the right of succession to all property within the State, whether it belongs to a resident or a non-resident. It certainly creates no exception in favor of a resident of the State. It gives him no privilege or immunity. Non-residents are only taxed on the right of succession to property within the State, while residents of the State are subjected to a tax upon all of their property wherever it may be situated. Mager v. Grima, 8 How. 490; Wallace v. Meyers, 38 Fed. Rep. 184, appeal dismissed, 154 U. S. 523; Brown v. Houston, 114 U. S. 622, 635.

VIII. The act does not violate the Fourteenth Amendment to the Constitution of the United States. It does not abridge the privileges and immunities of the plaintiff in error. It does not deny to her the equal protection of the law. Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283; Bell's Gap Railroad v. Pennsylvania, 134 U. S. 232; Giozza v. Tiernan, 148 U. S. 657; Pacific Express Co. v. Seibert, 142 U. S. 339;

Opinion of the Court.

Merchants' Bank v. Pennsylvania, 167 U. S. 461; Davidson v. New Orleans, 96 U. S. 97, 105; Orr v. Gilman, 183 U. S. 278; Carpenter v. Pennsylvania, 17 How. 456. It does not deprive the plaintiff in error of her property without due process of law. Davidson v. New Orleans, 96 U. S. 97, 104; Hagar v. Reclamation District, 111 U. S. 701, 710; Spencer v. Merchant, 125 U. S. 345; Palmer v. McMahon, 133 U. S. 660, 669; Lent v. Tillson, 140 U. S. 316, 327; Pittsburg &c. R. R. Co. v. Backus, 154 U. S. 421; Fallbrook Irrigation District v. Bradley, 164 U. S. 168; Merchants' Bank v. Pennsylvania, 167 U. S. 467.

The criticism on the regularity of the procedure of the Appellate Division in reversing the Surrogate's decision presents no Federal question, nor has it any merit..

IX. The plaintiff in error cannot escape taxation on the pretense that the money deposited by the decedent was only transitorily within the State of New York at the time of his death. Cases cited by plaintiff in error distinguished.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a writ of error to the Surrogate's Court of the county of New York. It is brought to review a decree of the court, sustained by the Appellate Division of the Supreme Court, 69 App. Div. 127, and by the Court of Appeals, 171 N. Y. 682, levying a tax on the transfer by will of certain property of Timothy B. Blackstone, the testator, who died domiciled in Illinois. The property consisted of a debt of $10,692.24, due to the deceased by a firm, and of the net sum of $4,843,456.72, held on a deposit account by the United States Trust Company of New York. The objection was taken seasonably upon the record that the transfer of this property could not be taxed in New York consistently with the Constitution of the United States.

The deposit in question represented the proceeds of railroad stock sold to a syndicate and handed to the Trust Company, which, by arrangement with the testator, held the proceeds subject to his order, paying interest in the meantime. Five days' notice of withdrawal was required, and if a draft was made upon the company, it gave its check upon one of its banks