Page:Harvard Law Review Volume 32.djvu/661

625 JURISDICTION TO TAX 625 In England,^" these taxes are of two sorts. There is a duty laid upon the succession, called in one act a legacy duty, in the later act a succession duty. There is also a duty laid upon the administration of the estate, called formerly a probate duty, and in the later act an estate duty. In America, in general, there is no duty laid upon administra- tion of estates; but the succession is very generally taxed, usually under the name of an inheritance tax, but sometimes, as in New York, under the name of a transfer tax. The inheritance of land passes and can only pass in accordance with the law of the situs; and the sovereign of the situs alone per- forms a service for which an excise tax may be exacted. It is there- fore universally held that no inheritance tax can be laid upon the transfer of land outside the territorial limits of the taxing state.^^* On aU immovable property within the state the inheritance tax may be laid,^^^ including equitable interests in such property.^"'' In the case of mortgaged land, a tax may be laid upon the transfer of interest of either mortgagor or mortgagee, assessed at the value of the interest only. ^°^ For the purpose of this discussion "land" means immovables, irrespective of the view taken of them by the land law of the situs; and includes a chattel real. Thus where an estate for joint lives in EngUsh land passed to the executor, upon the death of the foreign owner, legacy duty was held to be due upon it in England.^"^ Where a will directs that land be sold and the proceeds held as a trust fund, equity for some purposes regards the land as con- verted into personalty. Where a will contains such a direction as to foreign land, may the inheritance be taxed at the domicile, "^ For an admirable monograph on the EngUsh law on this topic, see Dicey, CoNPLicT OF Laws, 2 ed., 746-71. ^9* Westerfeldt's Succession, 122 La. 836, 48 So. 281 (1909); In re Swift, 137 N. Y. 77, 32 N. E. 1096 (1893); Lorillard v. People, 6 Dem. (N. Y.) 268 (1887); Common- wealth V. Coleman, 52 Pa. 468 (1866); Drayton's Appeal, 61 Pa. 172 (1869); Bittinger's Estate, 129 Pa. 338, 18 Atl. 132 (1889). '» McCurdy v. McCurdy, 197 Mass. 248, 83 N. E. 881 (1908); Matter of Burden, 47 Misc. 329, 95 N. Y. Supp. 972 (1905). ^'*° Kinney v. Treasurer & Receiver General, 207 Mass. 368, 93 N. E. 586 (191 1). & Receiver General, 207 Mass. 368, 93 N. E. 586 (191 1). But in Hatfield's Estate, 43 Pa. Co. Ct. 510 (1915), it was held that an inheritance tax cannot be levied on a mortgage of land within the state belonging to a nonresident. «» Chatfield v. Berchtoldt, L. R. 7 Ch. 192 (1872).
 * " McCurdy v. McCurdy, 197 Mass. 248, 83 N. E. 881 (1908); Kinney v. Treasurer