Page:Harvard Law Review Volume 32.djvu/666

630 630 HARVARD LAW REVIEW stricted to the chattels of the deceased resident situated within the state, together with his intangible property .^^^ Whatever view may be taken of a transfer by inheritance, other kinds of taxable transfers cannot be taxed outside the state of situs. Thus, a transfer by a gift causa mortis, which is commonly covered by an inheritance tax law, is governed, as will be seen, by the law of the situs; and there is no possible ground for taxing the transfer at the domicile of the decedent. The same thing would be true in the case of an appointment by will under a power which derives no force from the inheritance law of the person exercising the power. Thus in Matter of Fearing,^^ where a power of appointment over property outside New York was exercised by a New York will, the appointment was held not to be taxable in New York. In that case the power was created in a New York will, and the transfer under that will might therefore have been taxable in New York but for the fact that the creation of the power antedated the first inheritance tax law. It would seem that a tax could not be imposed at the domicile upon chattels situated in a state which does not accept the com- mon-law doctrine, but disposes of all chattels situated in the state, upon the death of the owner, according to its own inheritance laws. As to such chattels the law of the domicile grants no privilege to the successor, and it must therefore be beyond the power of the domicile to exact a tax from him. This principle was applied in a slightly different case. In Matter of Cummings ^^ a, decedent left personal property in New York and in California. The California court of probate found the de- ceased domiciled in that state, and distributed the assets found there according to the California law. The New York court found that the deceased died domiciled in New York ; but in assessing the New York inheritance tax it was held that the California assets could not be included. The reason is obvious; that in obtaining those assets the distributees had derived no help from the law of New York. Since an inheritance tax may be laid upon all tangible and much ^^ Weaver v. State, no la. 328, 81 N. W. 603 (1900); State v. Brevard, Phil. Eq. (62 N. C.) 141 (1867); Re Joyslin, 76 Vt. 88, 56 Atl. 281 (1903). 228 200 N. Y. 340, 90 N. E. 956 (191 1). «9 63 N. Y. Misc. 621, 118 N. Y. Supp. 684 (1909).