"1. A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred. dollars or over, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations, in the following cases:

"First. When the transfer is by will or by the intestate laws of this state from any person dying seized or possessed of the property while a resident of the state.

"Second. 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."

The legislature has the power to thus impose a tax upon the transfer, by will or intestate law, of property within the state, when the decedent is a non-resident of the state at the time of his death.

The power of the state to impose a succession tax upon personal property actually present in this state at the time of a non-resident decedent's death, was, in principle, affirmed in Blackstone v. Miller, 188 U. S. 189. That case came before the Supreme Court of the United States on error from the surrogate's court of New York county. It brought up a decree of that 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 decedent, at the time of his death, had on deposit in the United States Trust Company of New York $4,843,456.72. It was subject to draft on five days' notice. The transfer tax was imposed upon this deposit under the New York statute of 1892, the first section of which provides as follows:

"A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations not exempt by law from taxation on real or personal property in the following cases:

"First. When the transfer is by will or by the intestate laws of this state, from any person dying seized or possessed of the property while a resident of the state.

"Second. 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."

The Supreme Court of the United States, construing this statute, held that the imposition of such a tax upon this deposit was within the power of the legislature. And our Court of Errors and Appeals has said, in effect, that the state has power to impose a succession tax upon property within this state, without regard to the domicile of the decedent. Neilson v. Russell, 76 N. J. L. 655; Dixon v. Russell, 79 Id. 490.

It is to be noticed that the only difference between the New York act of 1892, and the act of 1909 of this state, is the omission, in the New Jersey statute, of the words "not exempt by law from taxation on real or personal property."

We think that the bonds, and mortgages securing them upon real estate located in New Jersey, which bonds and mortgages were actually physically present in New Jersey at the time of the owner's death, were property within the State of New Jersey within the meaning of paragraph 2 of section 1 of the act of 1909, and so were properly taxed by the comptroller, even though they had been taxed under a like statute in New York, where the owner resided at the time of his death. This was decided, in effect, by Blackstone v. Miller, supra, and by the same case in the New York Court of Appeals, 171 N. Y. 682. Says Mr. Justice Holmes, in the case in the United States Supreme Court (at p. 204):

"To come closer to the point, no one doubts that succession to a tangible chattel may be taxed wherever the property is found, and none the less that the law of the situs accepts its rules of succession from the law of the domicile, or that by the law of the domicile the chattel is part of a universitas and is taken into account again in the succession tax there." (Citing cases.)

He further says:

"No doubt, this power on the part of two states to tax on different and more or less inconsistent principles, leads to some hardship. It may be regretted, also, that one and the same. state should be seen taxing, on the one hand, according to the fact of power, and on the other, at the same time, according to the fiction that, in successions after death, mobilia sequuntur personam and domicile governs the whole. But these inconsistencies infringe no rule of constitutional law."

The principle of the decision, in Blackstone v. Miller, is that the deposit in question in the bank in the State of New York was property within the state, and subject to the transfer tax laws of the state, because the transfer of the deposit necessarily depended upon and involved the law of New York for its execution; or, in other words, that the transfer was subject to the power of the State of New York. The court says (at p. 205):

"If the transfer of the deposit necessarily depends upon and involves the law of New York for its exercise, or, in other words, if the transfer is subject to the power of the State of New York, then New York may subject the transfer to a tax." (Citing cases.) "But it is plain that the transfer does depend upon the law of New York, not because of any theoretical speculation concerning the whereabouts of the debt, but because of the practical fact of its power over the person of the debtor." * * * "What gives the debt validity? Nothing but the fact that the law of the place where the debtor is will make him pay. It does not matter that the law would not need to be invoked in the particular case." "Power over the person of the debtor confers jurisdiction, we repeat. And this being so, we perceive no better reason 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. The maxim mobilia sequuntur personam has no more truth in the one case than in the other. When logic and the policy of a state conflict with a fiction due to historical tradition, the fiction must give way."

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We have quoted at this length from Mr. Justice Holmes' opinion because of its cogent and exact reasoning, and because the language applies so exactly to the mortgages on real estate located in this state. It must be assumed, as to these bonds and mortgages, that the debtors reside within this state, and are subject to the jurisdiction thereof. This state has power over the person of the debtor and jurisdiction over the real estate, the security for the payment of the debt. It is the law of this state which gives these debts validity, and the law of this state which forces the debtor to pay. The right of the creditor (the decedent or his executor) to collect the debt depends upon the law of this state.

Also, we think that the bonds, and mortgages upon real estate located in the State of New York, and which bonds and mortgages were actually physically present within the State of New Jersey at the time of the owner's death, are property within the state within the meaning of the statute, and were taxable even though they had been taxed under a like statute in New York where the owner resided at the time of his death.

It is to be observed that the provision in question of our act of 1909 was taken from the New York act of 1892, and, upon well-settled principles, it is presumed that the legislature intended that such provision should be understood and applied in accordance with the construction previously placed thereon by the New York courts. Neilson v. Russell, supra.

The courts of New York, prior to 1909, had decided that securities, such as bonds and mortgages, physically present within the state at the time of decedent's death, are property within the state, within the meaning of their statute of 1892.

In the Matter of Romaine, 127 N. Y. 80, the Court of Appeals, under the New York act of 1887, providing that "all property which shall pass by will or by the intestate laws of this state, from any person who may die seized or possessed of the same, if such decedent was not a resident of this state at the time of death, which property, or any part thereof, shal! be within this state," shall be liable to a tax, held that securities consisting of stocks and bonds of different corporations,

and a mortgage upon real estate in New York, as well as passbooks showing deposits in various savings banks in New York, at the time of his death contained in a box in a safe deposit company in New York, of which he was the lessee, were taxable, although the decedent died intestate in Virginia, and had been domiciled in that state for ten years prior to his death.

In the Matter of Embury, 19 App. Div. 214, Philip Embury, resident in New Jersey, died at West Orange, this state. He left a will which was probated in Essex county, and appointed as executors persons residents of New Jersey. At the time of his death, Embury was the owner of certain stocks in New York banks, the certificates thereof being physically within the State of New York, and also had moneys on deposit in a bank in New York. The court held that this act of 1887 provided for a tax on such of Embury's property as was physically in New York-that is, the stocks and deposits, but that the tax could not be legally imposed or collected, for the reason that the statute had failed to provide a method for assessing and collecting the tax. The court further held that as to personal property within the state, belonging to nonresident decedents, the right of the state to impose a tax is based on its dominion over the property situate within its territory.

In the Matter of Whiting, 150 N. Y. 27, decided in 1896, and construing the New York act of 1892, the Court of Appeals held that bonds of foreign, as well as domestic, corporations, owned by a non-resident, but deposited by him in a safe deposit vault in New York state, and so present in the state at the time of decedent's death, are subject to taxation.

See, also, In the Matter of Morgan, 150 N. Y. 35, holding that bonds of foreign corporations, both registered and coupon, owned by a non-resident decedent, but kept by him in a safe deposit vault in New York, are subject to taxation under the act of 1892; and In the Matter of Hondayer, Id. 37, holding that a deposit of money in bank in New York, made by a nonresident decedent, although technically a debt, is still money for all practical purposes, and, as such, taxable under the

same act.