Opinion
Argued January 12, 1931
Decided February 10, 1931
Appeal from the Supreme Court, Appellate Division, First Department.
Benjamin W. Alling, Attorney-General of State of Connecticut ( T. Ludlow Chrystie, Farwell Knapp and Thomas Witter Chrystie of counsel), for appellant.
Seth T. Cole for Tax Commission of State of New York et al., amici curiae. Eli J. Blair for respondent. Joseph D. Nunan, Jr. and John Ewen for Joseph D. Nunan, Jr., as special guardian, respondent.
The State of Connecticut has petitioned the Surrogate's Court of the county of New York to direct the executor of a will to remit the assets of the estate to an administrator c.t.a., appointed in Connecticut, the domicile of the testatrix. The return is requested for a single purpose. The purpose is to permit the assessment and collection in Connecticut of a tax upon the transfer effected by the will.
The Surrogate in denying the petition placed his ruling upon two grounds. He held that to return the assets for such a purpose would be equivalent to the enforcement by one State of the tax laws of another ( Colorado v. Harbeck, 232 N.Y. 71). He held, apart from that principle, that the relief should be refused in the exercise of a sound discretion, since compliance with the demand would result in a depletion of the assets by the unnecessary expenses of a double administration. The Appellate Division unanimously affirmed.
We are not required to determine whether the return of assets to another State with a view to the imposition of a tax by the taxing officers of the domicile is the enforcement of a foreign tax law within Colorado v. Harbeck ( supra). (Cf. Moore v. Mitchell, 30 Fed. Rep. [2d] 600; 281 U.S. 18). If the contrary be assumed, the appellant is not greatly helped. Return, even though not forbidden by a hard and fast rule, is certainly not relief to be demanded as of right. At most it is to be granted or refused in the exercise of a discretion that will give heed to all the facts ( Matter of Hughes, 95 N.Y. 55, 60; cf. Matter of Rogers, 225 App. Div. 286; 254 N.Y. 592). The executor in New York conveyed repeated offers to the taxing officers in Connecticut to make payment of any tax found owing at the domicile. What he refused was a wasteful duplication of administrations and accountings. In the review of such an order the jurisdiction of this court is limited to a determination of the law. Discretion is not revised except for manifest abuse.
Other questions suggested on the argument are mentioned only to exclude them from the scope of our decision.
We do not attempt to say whether Connecticut has jurisdiction by proceedings in her own courts to impress a lien upon choses in action which had a situs in that State at the death of the testatrix, though the documentary evidences are present in New York. No such question is before us.
For like reasons, we do not attempt to say whether a lien for taxes, duly laid by Connecticut either by statute or by judgment upon assets with a situs in that State at the death of the testatrix, will be recognized and enforced in the courts of New York on the same basis as any other charge or proprietary interest. Colorado v. Harbeck ( supra) was a case of an attempted collection of a tax on the basis of a debt through an action in personam ( 232 N.Y. 71, at p. 83; cf. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, at p. 291). What was said by way of dictum as to the existence of a lien was in precise accordance with the ruling of the Supreme Court in Blackstone v. Miller ( 188 U.S. 189) and other leading judgments. Since then, Blackstone v. Miller and the judgments that followed it have been overruled by the Supreme Court, and no longer have the force of law ( Farmers Loan Trust Co. v. Minnesota, 280 U.S. 204; Baldwin v. Missouri, 281 U.S. 586; Beidler v. South Carolina Tax Comm., 282 U.S. 1). We leave the question open whether a consequence of their disappearance is to require some revision of the dictum of Colorado v. Harbeck as to the lien and its enforcement. In saying this we do not suggest by indirection a belief as to the answer that would be proper if the question were before us. The reservation is wholly neutral. Here there was no assessment and no claim of any lien that was presently enforcible (cf. Heymann v. Viane, 252 N.Y. 159). We take the record as we find it.
The order should be affirmed.
POUND, CRANE, KELLOGG, O'BRIEN and HUBBS, JJ., concur; LEHMAN, J., not sitting.
Order affirmed.