approved by our highest courts that its validity can no longer be disputed,' whether or not the tax was in force befo.e the property was placed in the foreign jurisdiction.2

'Frothingham v. Shaw, 175 Mass. 59, 61, 78 Am. St. Rep. 475. In re Stanton, 142 Mich. 491, 105 N. W. 1122, 12 Detroit Leg. N. 829. Mann v. Carter, 74 N. H. 345, 68 N. E. 130, relying on the following cases: Hartman Case, 70 N. J. Eq. 664, 667; Hopkins Appeal, 77 Conn. 644; Bridgeport Trust Co., 77 Conn. 657; Matter of Swift, 137 N. Y. 77, 18 L. R. A. 709; Matter of Houdayer, 150 N. Y. 37, 34 L. R. A. 235, 55 Am. St. Rep. 642; State v. Dalrymple, 70 Md. 294, 3 L. R. A. 372; Eidman v. Martinez, 184 U. S. 578, 581. (But see In re Joyslin, 76 Vt. 88.) In re Lewis, 203 Pa. St. 211, 217, 52 A. 215. Blackstone v. Miller, 188 U. S. 189, 23 S. Ct. 277, 47 L. Ed. 439, affirming 171 N. Y. 682, 69 N. Y. App. Div. 127 (not a deprivation of the privileges and immunities of a citizen of another state or a violation of the fourteenth amendment).

"The question presented is not one of general equities, but of jurisdiction. It has been held and logically tha the taxing authorities must be controlled solely by the laws of the state, and not by proceedings in another and distinct jurisdiction, to ascertain whether or not a certain tax should be levied or collected. Payment in one state is not a defence when called upon to pay in the other unless so provided by law. Mann v. State Treasurer, 74 N. H. 345, 68 A. 130, 15 L. R. A. N. S. 150. Blackstone v. Miller, 188 U. S. 189, 206, 207, 23 Sup. Ct. 277, 47 L. Ed. 439." Per Root, J., in In re Douglas County, 84 Neb. 506, 121 N. W. 593.

"The fact that two states, dealing each with its own law of succession, both of which the plaintiff in error has to invoke for her rights, have taxed the right which they respectively confer, gives no cause for complaint on constitutional grounds. The universal succession is taxed in one state, the singular succession is taxed in another. The plaintiff has to make out her right under both in order to get the money." Per Holmes, J., in Blackstone v. Miller, 188 U. S. 189, 207, 23 S. Ct. 277, 47 L. Ed. 439, affirming 171 N. Y. 682, 69 N. Y. App. Div. 127. Where the testator died living in New Hampshire and having savings bank deposits in Massachusetts, these deposits are subject to tax in New Hampshire although they were also subject to tax in Massachusetts. This is not double taxation, as the two burdens are created by two different independent states for wholly different local purposes. Mann v. Carter, 74 N. H. 345, 68 N. E. 130.

Double taxation should be avoided in construction when possible. In re Enston, 113 N. Y. 174, 182, 21 N. E. 87, 3 L. R. A. 464, 22 N. Y. St. 569, reversing 46 Hun 506, 19 Abb. N. Cas. 227, 10 N. Y. St. 380.

'The fact that the law imposing a tax was in force before the deposit was made by a non-resident in New York does not seem to be relied upon by the court. Blackstone v. Miller, 188 U. S. 189, 23 S. Ct. 277, 47 L. Ed. 439. affirming 171 N. Y. 682, 69 N. Y. App. Div. 127, relying upon Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283.

Sec. 194. Reciprocal Provisions.

The following states have reciprocal provisions for the inheritance tax paid in another state: West Virginia, statute of 1904,

chapter 6, sect. 6; Massachusetts statute 1907, chapter 563, sect. 3; Vermont Statute 1904, number 30, sect. 3. Connecticut tried a reciprocal provision, statute of 1903, chapter 63, but has now adopted a retaliatory arrangement, statute of 1907, chapter 179.1

This has been construed in Vermont to cover only what is actually paid to the foreign jurisdiction, after deducting the discount there allowed, and not to include the tax actually there assessed.2

1 "The amendment passed in 1903 removed the bar erected by the original act, against the use of any of its provisions for imposing a transfer tax on personal property of non-residents. It proceeds to authorize such a transfer tax and to prescribe the machinery for its collection, coupling this, however, with instructions to the treasurer not to collect such transfer tax in any case where the decedent resided in a state which does not collect transfer or succession taxes from personal property therein 'belonging to the estates of Connecticut decedents.' The amendment recognizes the justice of the scheme adopted in the original act, and attempts its modification only so far as may be necessary to add to the force of example the influences of reciprocity." Per Hammersley, J., in In re Gallup, 76 Conn. 617, 627, 57 A. 699.

2 In re Meadon, 81 Vt. 490, 70 A. 1064.

Sec. 195. Lapsed Legacy.

Double taxation was enforced rigidly in the following English case: The father died leaving certain fees to his son; the son died leaving issue which survived the father and devising the property to trustees upon certain trusts.

The English wills act, section 33, provides that where property is devised to the child of the testator who dies in the testator's lifetime leaving an issue which survives the testator, such devise "shall not lapse but shall take effect as if the death of such person had happened immediately after the death of the testator."

The findings act provides that an estate duty shall be levied on all property passing at a person's death, of which the deceased was at the time of his death competent to dispose. The government collected an inheritance tax from the father's estate and the court further holds that the effect of the wills act was to pass the real estate to the child in fee to devolve as part of his property, and consequently that it was subject to a second inheritance tax from his executors.

In re Scott (Eng.), 83 L. T. 613.

Sec. 196. The Louisiana Rule.

The Louisiana constitution forbids an inheritance tax when the property passing has borne its just proportion of taxes prior to the death of the decedent. This exempts an interest in a partnership which has paid the usual taxes,' but not stock in a corporation which has paid the tax.2

The contract of an insurance agent with his company provided that in case of his death his representative should be entitled to certain commissions on renewals. It was claimed that as the premiums had been taxed, therefore the inheritance tax should not be laid. The court holds, however, that the premiums do not form the subject-matter of the inheritance, but are due to and are paid to and belong to the company, and the heirs inherit simply an incorporeal right whose only relation to the premiums is that its amount is determined by a computation based on their net amount, and the contract does not invest the heirs with the ownership of the premiums or any part thereof, but only with the right to require of the insurance company payment of an amount of money measured by the net amount of the premiums, and the right thus inherited has never been assessed and has never borne taxes.3

It was argued that the tax should not be collected on bonds belonging to the estate, because in 1905 the decedent sold certain real estate on which the taxes had been paid and with the proceeds of the sale during the same year purchased bonds which she owned at the time of her death in January, 1906. It is not contended that any taxes have ever been paid on these bonds but it is argued that as the decedent had paid all taxes assessed against her real estate and with the proceeds of the sale purchased bonds, the latter must be construed in the light of property which has borne its just proportion of taxes. The court holds that there would be weight in this contention if the constitution had exempted persons who have paid all the taxes assessed against them, but as the law excepts property inherited it cannot construe the article so as to substitute persons for property. The question of the exemption of property from the tax can only arise after the opening of the succession by the death of the decedent, and the right of the heirs and of the fisc must be determined by the state of facts then existing. That other property formerly owned by the decedent may have borne its just proportion of taxes is a matter entirely foreign to the inquiry.

1Succession of Stauffer, 119 La. Ann. 66, 43 S. 928.

"The taxation of corporate capital stock, franchises and property is not a taxation of the shares held by individual stockholders; and therefore these taxes are not exempt from the operation of the inheritance tax law of 1904. Succession of Kohn, 115 La. Ann. 71, 38 S. 898.

Succession of Fell, 119 La. Ann. 1037, 44 S. 879.

Succession of Pritchard, 118 La. Ann. 883, 43 S. 537.

CHAPTER XXVIII.

ESTATES OF NON-RESIDENT DECEDENTS.

197. Realty of Non-Resident. - Corporation Owning Property in State.

§ 198. Personalty of Non-Resident.

§ 199. Jurisdiction Based Solely on the Situs of Personal Property in the State.

{200. Domestic Stock Owned by Non-Resident.

§ 201. Non-Resident's Stock in Foreign Corporation.

Where Beneficiary Alone is within the Jurisdiction.
Removal of Property before Taxation.

§ 202.

§ 203.

Sec. 197. Realty of Non-Resident. Corporation Owning Property in State.

The succession to real estate depending on the law of its situs, real estate of a non-resident may well be subject to an inheritance tax at its situs,' and not at the domicile of the decedent.2

"Some states, as appears in our table at p. 1285, are claiming an inheritance tax on stock of non-residents in corporations which are not even organized under their laws, but own property within the state. We know of no decisions supporting such a tax, and believe that the general principles of corporate taxation forbid it. It would seem to be involved in the reasoning of the court in a recent New York case, which discusses the distinction between a corporation and a joint stock association. Such a tax might conceivably be justified under some such language as follows:

"The attitude of a holder of shares of capital stock is quite other than that of a holder of bonds towards the corporation which issued them. While the bondholders are simply creditors, whose concern with the corporation is limited to the fulfillment of its particular obligation, the shareholders are persons who are interested in the operation of the corporate property and franchises, and their shares actually represent undivided interests in the corporate enterprise. The corporation has the legal title to