Page:Harvard Law Review Volume 32.djvu/655

619 JURISDICTION TO TAX 619 is that only which is equally applicable to all. Fixed tangible property, being referable only to the state in which it is situated, should be deducted from the whole value of the business before dividing the excess; though tangible property which is used through- out the business may be divided with the excess. In the same way if good-will is greater in one state than in another, it should be subtracted and separately taxed. The balance, the corporate excess, may properly be divided among the states in proportion to the amount of business done or capital invested in each. VI. Taxation of Property held by Fiduciary Where the legal title, or any other legal interest in property, is in the hands of a fiduciary, two special problems arise: first, may the property be taxed as if it were the ordinary property of the fiduciary; second, may a tax be levied upon the beneficiary. The different classes of fiduciaries require somewhat different treat- ment, and will be considered separately. In the case of real estate, as has been seen, each interest may be taxed separately or all together in the name of the paramount owner. This is true as well of legal and beneficiary interests as of distinct legal interests; the place of taxation always being the situs of the land. Thus, the situs of land held by a trustee to secure an issue of bonds might tax the land in the name of the trustee.^^^ The beneficiary, on the other hand, might be taxed on his equitable interest; thus a nonresident member of a real estate trust which held land in Massachusetts might be taxed in Mas- sachusetts upon his equitable interest in the land.^®** The trustee of personal property being the complete legal owner of it, it would naturally be expected that the property should be taxed exactly as if it were his own. It has accordingly been held that a trustee of personal property is taxable on it at his domicile,^^* although the property may be situated outside the state,^^^ or although the beneficiaries be nonresident.^®^ Thus stock in a 1" Frankfort v. FideUty T. & S. V. Co., iii Ky. 667, 64 S. W. 470 (1901) {sembk). Kentucky had no statute allowing the taxation of a mortgage interest. ""• Kinney v. Treasurer, 207 Mass. 368, 93 N. E. 586 (191 1). Moore, 16 Wash. 339, 47 Pac. 753 (1897). »« Guthrie v. Pittsburgh C. & S. L. Ry., 158 Pa. 433, 27 Atl. 1052 (1893). »« Price r. Hunter, 34 Fed. 355 (1888); Davis v. Macy, 124 Mass. 193 (1878);
 * " Higgins V. Commonwealth, 126 Ky. 211, 103 S. W. 306 (1907); Walla Walla v.