author: Chief Justice Sharswood

text:
    Cuthbertson’s Appeal. Appeal of the Contributors to the Pennsylvania Hospital. Appeal of the Zoological Society.
    1. Where an alleged testator is shown by evidence to be weak in inind, whether arising from age, bodily infirmity, great sorrow, or other canso tending to produce such weakness, though not sufficient to create testamentary incapacity, and the person whose advice has been sought and taken, receives a large benefit under the instrument propounded as a will, it must be shown affiraatively that the alleged testator had full understanding of the nature of the disposition contained in it.
    2. Frew v. Clarke, 30 P. F. Smith 170, distinguished; Boyd v. Boyd, 16 Id. 283, followed.
    3. Every man who draws a will under such circumstances as those specified above, is required to prove affirmatively, all the circumstances connected with the drawing of the will, and must make it appear that the alleged testator was laboring under no mistaken apprehension as to the value of his property, and the amount he was giving to his confidential adviser.
    4. What evidence as to the existence of such circumstances as those mentioned, should move the court to award an issue devisavit vel non to test the validity of the testamentary instrument propounded.

      February 3d 1881.
    Before Sharswood. C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeals from a decree of the Orphans’ Court of Philadelphia county; Of January Term 1880, No. 228.
    Appeals of James Cuthbertson, James Georgeson and Agnes, his wife, in right of said Agnes, Jeanie Cuthbertson, the Contributors to the Pennsylvania Hospital and the Zoological Society of Philadelphia, from a decree of the court refusing to grant an issue devisavit vel non, to determine whether a certain paper, purporting to be a codicil to the last will and testament of one John L. Neill, was a valid codicil or not, and dismissing an appeal from the decision of the Register of Wills admitting said codicil to probate. The facts of the case, as they appeared from the evidence taken before Joseph He F. Junkin, Esq., the examiner appointed by the court, were as follows :
    John L. Neill, the testator, was born in Leith, Scotland, somewhere about the year 1806. In 1828 he arrived in this country, and about 1838 began a large and lucrative business in shipbuilding, from which he amassed a large fortune. In 1867 he retired from business, but remained still actively engaged in taking care of the various property in which his means were invested. He was in all his dealings a man of strong mind and resolute will.
    He lost from time to time all his children, brothers and sisters, and in the year 1876 was living in his residence, in Philadelphia, with his wife, Elizabeth Ann Lambert, his wife’s sister, and Mary Ann Maloney, his wife’s cousin. He was at this period, and had for some time before, been on intimate terms with a family named Cuthbertson living in Scotland, who were no relation to him, but to whom he was under obligations. One of this family, by name William Cuthbertson, was in the year 187 6 temporarily living with him.
    On April 28th 1874, Neil, being then indisputably of sound testamentary capacity, himself wrote and signed his wi'll. By the terms of this instrument he directed that his wife, Miss Lambert and Miss Maloney, should be allowed the use of testator’s residence during the said wife’s life. He also further directed that sufficient of his property should be invested in good securities, so as to yield the annual sum of $11,000, of which sum he directed $8000 to be paid annually to his wife for life, $2000 to be paid annually to Miss Lambert, and $1000 annually to Miss Maloney. After his wife’s death, testator directed that during Miss Lambert’s life she should still be allowed the use of the house with Miss Maloney, receiving $8000 in place of the former $2000 per annum, Miss Maloney to continue to receive the $1000.
    On Miss Lambert’s death testator directed the hquse to be sold, and further directed as follows :

      44 Item 14th. On the death of my wife and her sister, Elizabeth A. Lambert, I desire that the sum that was set apart to produce the yearly income for the maintenance of my wife, her sister Elizabeth A. Lambert, and her cousin Mary Ann Maloney, bo now merged with my other estate, and the whole disposed of by my executors, at sale or otherwise, that the several legacies that commenced with item No. 20 may be paid, and the estate settled up in the shortest possible time. I desire to draw the attention of my executors to the difference in value in property at present and what it may be in the future on the decease of Elizabeth A. Lambert, and as the several legacies numbering from twenty up to thirty-nine will only be paid after her decease, the aggregate being more or less, the items or sums will be proportioned accordingly.”
    Testator then, from Item 20 to Item 39 of his will, bequeathed various legacies, amounting in all to $173,000. Among others were the following:
    Item 20th. I give and bequeath to each of the children of my friend, Mrs. James Cuthbertson, of Leith, Scotland, to Agnes, now Mrs. Georgcson, twenty-five thousand dollars ($25,000).
    Item 21st. To William, eldest son of Mrs. Cuthbertson, twenty-five thousand dollars ($25,000).
    Item 22d. To James, second son of Mrs. Cuthberson, twenty-five thousand dollars ($25,000).
    Item 23d. To Jeanie, youngest daughter of Mrs. Cuthbertson, twenty-five thousand dollars ($25,000).
    Item 26th. To three executors of my estate ten thousand dollars ($10,000) each ($30,000).
    Item 27th. To Louisa Harrison, of Philadelphia, five thousand dollars ($5000).
    Item 28th. To Mrs. N. P. Murphy, of Philadelphia, five thousand dollars ($5000).
    Item 29th. To Mrs. Louisa Lambert, of Philadelphia, three thousand dollars ($3000).
    Item 30th. To Pennsylvania Hospital, Philadelphia, five thousand dollars ($5000).
    Item 34th. To Old Man’s Home, Philadelphia, five thousand dollars ($5000).
    Item 37th. To Zoological Garden Park, Philadelphia, ten thousand dollars ($10,000).
    Of this will he appointed John S. Yardley, Henry E. Busch and Horace Yardley, executors.
    John S. Yardley was a conveyancer, a personal friend of testator, often employed by him in conveyancing matters.
    In the early part of November Í876, Mrs. Neill became very sick. Neill had at about the same time a stroke of paralysis, which, though not very severe, crippled the use of his right arm. Within two weeks he had another stroke, and shortly afterwards Mrs. Neill died. There was some evidence that about this time Neill had a third stroke, but whether this was prior or subsequent to December 2d did not clearly appear.
    The testimony as to the effect upon testator of the paralysis and the loss of his wife was contradictory. William Cuthberson, who lived with him, testified that he ivas affected seriously, both mentally and physically; that after the first stroke he was unable to manage his business, could not write, could not converse, and could only sign checks and receipts by the aid of some one guiding his hand; that on December 2d he was in such a condition that he could not have read a testamentary instrument, nor have understood it when read to him, unless each item had been read over and explained carefully; that in all probability he would have forgotten all about the preceding item while the next was being explained; that his speech was at that time affected, and, although he might have been able to speak a little, it could only have been understood with difficulty and by those who were constantly about him; and finally that he had observed no change in Neill’s feelings towards the Cuthbertson family. Miss Lambert testified that at this time Neill was broken down with sorrow, and that his speech was very bad and imperfect. Distinguished medical experts also testified that paralytic strokes such as suffered by Neill might have, and sometimes did, bring about such a mental and physical condition as above set forth.
    On the other hand, other witnesses testified to a w'holly different condition of affairs at this date. Dr. Thomas M. Drysdale, who had attended him during his sickness, testified that Neill’s mind was then perfectly clear, and his memory good ; that there was no difficulty about his speech, and that he had about that time talked understandingly on business topics. This account received confirmation from several other witnesses who had seen testator at about the same period, and who, although they thought him physically weak, detected no mental weakness nor difficulty in speech.
    Miss Lambert also testified as follows: “ The doctor said to me, ‘Mr. Neill’s, disease is progressing rapidty, and if he has any business to settle you had better speak to him about it, as he is so nervous I don’t like to speak with him.’ Then I did speak to him. I said, ‘ Mr. Neill, what is to become of me if anything happens to you?’ ‘You are provided for,’he said. He then said to me ‘ Get the will and read it.’ I got it and read it to him. Then he said, ‘ Send for John S. Yardley.’ When Mr. Yardley came in (on the evening of December 1st 1876), I handed him the will, I think; Mr. Neill, Mr. Yardley and myself being present in the second story back building, I mean the back room in the front building. I then said, ‘Mr. Yardley, will you .see if this holds the same for me as before our trouble?’ He then commenced reading the will until he came to the large legacies. When it came to the Cuthbertsons’, which was $25,000, he seemed to thipk it was an ennormous sum. He said, ‘Mr Neill, do you think your estate will hold out to pay these large legacies ?’ and he then came to some of my friends — Miss Harrison, Mrs. Lambert, &c., and Mrs. Murphy- — and Mr. Neill just waved his hand in this way (witness waves her hand outstretched and hoi’izontally), and then I put my two hands together upon my breast in this manner (witness clasps her hands and presses them upon her breast), and I said, ‘ Oh, they are poor !’
    “Mr. Yardley then said, ‘Well,’ says he, ‘saya- $1000.’ I can’t say positively about the other parts, except the Old Man’s Home. The other parts I can’t remember about. He said, ‘ The Old Man’s Home is a very good institution, let that remain.’
    “ Mr. Yardley said that. I don’t remember the other until Mr. Neill spoke himself. ‘ I give to my friend John Yardley, $10,000.’ Mr. Neill said that. Mr. Yardley then said, ‘Weil, Mr. Neill, there will be a residue, and will that go to the heirs and assigns V and Mr. Neill said ‘ Yes.’ That is all that was said. There was nothing more said.”
    Yardley, that night, drafted a codicil to testator’s will, confirming the bequests to Miss Lambert and Miss Maloney, reducing the legacies, beginning with item 20, in all, from §173,000 to $35;000, cutting down, inter alia, the legacies to William and Jeanie Cuthbertson and of Agnes Georgeson from §25,000 to $2500, those to Louisa Harrison and Mrs. Murphy from $5000 to §1000, that to Mrs. Lambert from §3000 to $1000, that to the Pennsylvania Hospital from $5000 to §1000, that to the Zoological Society from §10,000 to $2500, leaving intact the legacies to the Old Man’s Home and to the executors, and' bequeathing all the residue of his estate to Yardley. The estate was worth, in all, several hundred thousand dollars. How much was comprehended in the bequest of the residue did not appear, but undoubtedly somewhere about §300,000.
    The next morning (December 2d), Yardley stopped at Neill’s house with his draft of the codicil. Miss Lambert then testified substantially as follows:
    “ Yardley read the draft of the codicil he had made to Neill; Neill said nothing during the whole interview. Yardley then said he was going to have the codicil engrossed, but promised to return that evening that the testator might sign it. He proposed that William O. McPherson, a friend of the testator, should be called in as a witness, and undertook to bring him. He suggested also that the attending physician, Dr. Drysdale, should be called in for a like purpose, and I undertook to send for him.
    “ In the evening, Yardley stopped again, in company with McPherson, bringing with him the codicil engrossed. Dr. Drys-dale and one Caleb It. Keeney, a neighboring druggist and friend of testator, were sent for. The testator then, being unable from paralysis to write, signed the codicil with a cross. McPherson, Drysdale and Keeney signed as subscribing witnesses. I then put the codicil away; but on the next day, at Neill’s request, read it to him again. He made no remark, and I then placed it in his chest, where it remained until his death.”
    Miss Lambert’s evidence was contradicted in most essentia] particulars by Yardley.
    He testified that testator, on first sending for him, had received him cordially, and given him verbal directions as to a codicil to his will which he desired to have drawn, instructing him to insert a provision against the lapse of his bequests to Miss Lambert and Miss Maloney, and voluntarily proposing and directing the reduction of the legacies. That he then asked testator, “ What disposition do you want to make of the rest and residue of your estate V’ Whereupon testator answered, “ For the many valuable services you have rendered me, I give it to you, my friend, John S. Yardley, and no one else.” That, on returning next day with the draft, he read it to the testator, who distinctly replied that it was all right, and as he wanted. That testator then requested him to call again in the evening with the codicil engrossed, and to bring with him McPherson as a witness, promising to send for Dr. Drysdale and Keeney as the other witnesses. That he did so, and finding on his arrival that Dr. Drysdale and Keeney the other proposed witnesses were not yet come, he again read aloud the codicil to the testator in the presence of Miss Lambert and McPherson, explaining some parts as he went along, and finally asking testator if it was all right, to which he replied, “ It is, it’s what I want.” That Dr. Drysdale and Keeney coming in shortly after, testator made his mark to the codicil, and the signatures of the witnesses were then affixed. During all these transactions, Yardley was of opinion that the testator’s mind appeared perfectly clear and sound, and his speech plain.
    As regards some of the facts testified to by him, Yardley was amply corroborated by the subscribing witnesses. McPherson testified to the truth of the whole account of the visit at the time of the execution of the codicil, as described by Yardley, and stated that testator had verbally expressed his assent to the codicil just before affixing his mark. Dr. Drysdale testified similarly as to the assent. Keeney was unable to say whether the assent was verbal or by signs. All agreed that the testator’s mind appeared clear, and that he could converse freely and intelligently.
    Shortly after this occurrence Neill became distinctly affected with aphasia — a disease produced by the paralysis, and showing itself in a gradual weakening of the mental faculties and an almost complete loss of the power of speech. The evidence was somewhat contradictory as to when this disease became first clearly marked. Some witnesses placed the time in the latter part of December 1876 or early part of January 1877; others in February 1877. In September 1877 Neill died.
    His executors presented both the will and codicil for probate, which were accordingly admitted by the register of wills, and letters testamentary issued thereon. From the decision of the register, admitting the codicil to probate, James Outhbertson, James Georgeson and Agnes, his wife, in right of said Agnes and Jeanie Outhbertson, appealed to the Orphans’ Court, and subsequently filed therein a petition for an issue devisavit vel non to test the validity of the same. In these proceedings William Outhbertson declined to take part, alleging as his reasons that he feared that his doing so would distress his friends. Miss Lambert and Miss Maloney, the Contributors to the Pennsylvania Hospital and the Zoological Society of Philadelphia, were allowed, on petition, to intervene in the proceedings.
    An examiner was appointed and testimony taken, and on January 17th 1880, the court, in an opinion by Hanna, P. J. (Pen-rose, J., filing a concurring opinion), entered a decree dismissing the appeal and refusing the issue. The applicants for the issue and those intervening in the application thereupon took this appeal, assigning for error the decree of the court.

      Henry J. McCarthy and William A. Porter, for James Cuthbertson, Agnes Georgeson and Jeanie Cuthbertson, appellants.
    There was evidence to go to a jury that testator was not at the time of the making of the alleged codicil of sound testamentary capacity: Irish v. Smith, 8 S. & R. 576; McTaggart v. Thompson, 2 Harris 154. The provisions of the codicil, and the extraordinary and unreasonable change they would appear to indicate in testator’s feelings, constitute clear evidence of incapacity, and may be taken into account: Leech v. Leech, 5 Clark 86; Hauberger v. Root, 6 W. & S. 431; Bitner v. Bitner, 15 P. F. Smith 347; Clark v. Fisher, 1 Paige’s Ch. 175. Even if Neill’s condition did not amount to absolute incapacity to make a will, it is nevertheless clear that his mind was so weakened that the burden' of proof is on Yardley to show clearly the fact that no improper advantage was taken by him of testator’s condition. Such is always the duty of those who draw wills giving large benefits to themselves, when a testator’s testamentary capacity is impaired: Dean v Negley, 5 Wright 317; Daniel v. Daniel, 3 Id. 209; Newhouse v. Godwin, 17 Barb. 236; Beall v. Mann, 5 Ga. 470; Krepps v. Krepps, 4 Brewster 38; Duffield v. Robeson, 2 Harrington 384; Tomkins v. Tomkins, 1 Bail. 92; Clark v. Fisher, 1 Paige Ch. 175; Ligram v. Wyatt, 1 Hagg. 384; Greville v. Tylee, 24 Eng. L. & Eq. 53; Durling v. Loveland, 2 Curteis 225; Baker v. Batt, 2 Moore’s P. C. C. 317; Segrave v. Kirwan, 1 Beatty, Jr. Ch. 157. The ease is directly ruled by Boyd v. Boyd, 16 P. F. Smith 283. An issue should have been awarded.

      A. Sydney Biddle and George W. Biddle, for the Contributors to the Pennsylvania Hospital, appellants.
    The testimony as to Neill’s mental incapacity was very strong. He was not able to dispose, of his property with clear understanding and memory: Marquis of Winchester’s Case, 6 Rep. 23 a; Mountain v. Bennett, 1 Cox 353; Greenwood v. Greenwood, 3 Curteis Appendix; Marsh v. Tyrrel, 2 Hagg. 122; Harwood v. Baker, 3 Moore P. C. 282; Harrison v. Rowan, 3 Wash. C. C. 580; Den v. Johnson, 2 South. 454; Boyd v. Eby, 8 Watts 66; Converse v. Converse, 21 Vt. 168; Clark v. Fisher, 1 Paige Ch. 171.
    The law will most scrupulously scrutinize any will drawn up by a confidential adviser whereby a large benefit is conferred upon himself. More particularly will they do this where there is any indication of testator’s mental incapacity: White & Tudor’s L. C. Eq. 1192, 1216, 1226, 1268, 1282, 1284, &c., and cases cited. In such case the onus is cast upon the adviser to prove the bona fides of the transaction: Boyd v. Boyd, 16 P. F. Smith 283. Nor is this case overruled by Frew v. Clarke, 30 P. F. Smith 170. In this latter case the testator’s mental incapacity was not shown, and besides the case was decided by a divided court.
    [Sharswood, O. J. — The question on which the court differed in opinion was the competency of the witness Clarke. Judge Paxson and I dissented on the ground that the paper was not a will, but a contract inter vivos, and in that view Clarke could not have been a witness under the Act of 1869, because the other party to the contract was dead.]
    Yardley should be called upon to show the fairness of the whole transaction to the satisfaction of a jury. If he fails to do this, the whole codicil should be set aside, it being impossible to distinguish what parts of it were and were not produced by undue influence: Hughton v. Hughton, 15 Beav. 278; Cooke v. Lamotte, Id. 234; Florey v. Florey, 24 Ala. 241; Irwin v. Keen, 3 Whart. 347; Davis v. Calvert, 5 Gill & J. 269; Tyler v. Gardiner, 35 N. Y. 559.

      W. W. Montgomery and Samuel Wagner, for the Zoological Society of Philadelphia, appellant,
    presented no paper book nor argument, but submitted the case to the court on the paper books furnished in the other appeals.

      Robert N. Willson for the appellees.
    Mere impairment or weakness of mind is insufficient to invalidate a will. To effect this the mind of the alleged testator must have been so far impaired as that from defect either of memory, judgment, or discernment, he did not really know and intend what he was doing when he executed the testamentary paper, or it must stand good: McMasters v. Blair, 5 Casey 298; Thompson v. Kyner, 15 P. F. Smith 368; Tawney v. Long, 26 Id. 106; Cauffman v. Long, 1 Norris 72. It cannot be pretended that there was evidence that Neill’s mind was affected to this extent, even if there was a conflict of testimony on this point; it is equally well settled in this state that an issue will not be granted, when upon consideration of the whole case, the court is of the opinion that a verdict against the will ought not to be sustained: Graham’s Appeal, 11 P. F. Smith, 43; Cozzens’s Will, Id. 196; De Haven’s Appeal, 25 Id. 337; Wainwright’s Appeal, 8 Norris 220. Nor was there sufficient evidence of undue influence to go to a jury. Mere persuasion or solicitation does not amount to such influence : Miller v. Miller, 3 S. & R. 267; Tawney v. Long, 26 P. F. Smith 106. It does not exist unless the mind of the testator is subjugated by some kind of coercion which subverts his independence, destroys his free agency, and substitutes the will of another for his own, at the very time when the act of disposition takes place: McMahon v. Ryan, 8 Harris 329; Eckert v. Flowry, 7 Wright 46; Thompson v. Kyner, 15 P. F. Smith 368. Boyd v. Boyd, 16 P. F. Smith 283 is not applicable here. There a weak mind, illiteracy, extreme physical debility, and a lack of acquaintance with business transactions, were all shown to co-exist in the testator. Hero the case is not near so strong as regards the testator’s physical and mental conation. The case is ruled by Frew v. Clarke, 30 P. F. Smith 170.
   Chief Justice Sharswood

delivered the opinion of the court, February 14 th 1881.

Boyd v. Boyd, 16 P. F. Smith 283, established a general principle of the highest importance for the protection of persons who call in professional or other advisers to assist them in making their last wills. That principle may be briefly stated thus : Where the alleged testator is shown by evidence to be weak in mind, whether arising from age, bodily infirmity, great sorrow, or other cause tending to produce such weakness, though not sufficient to create testamentary incapacity, and the person whose advice has been sought and taken receives a large benefit under the instrument propounded as a will, it must be shown affirmatively that the alleged testator had full understanding of the nature of the disposition contained in it. The general rule undoubtedly is that testamentary capacity and knowledge of the disposition made are presumed. Where the testamentary capacity is perfect, fraud or undue influence must be shown. In such case the undue influence must be such as to destroy the freedom of will of the party, or at least very much to impair it. But not so in the case of an old, infirm and mentally weak man, disposing of his estate in favor of his confidential adviser. These principles were all affirmed ana recognised in Frew v. Clarke, 30 P. F. Smith 170. That case did not in the least shake the principle of Boyd v. Boyd, which was fully supported by the authorities, and is founded on sound principle and the wisest policy. Wills are generally prepared according to instructions given to the scrivener privately, when no one else is present; and to hold that in the case supposed it is sufficient to prove the formal execution of the paper in the presence of witnesses, and then throw upon the contestants the burden of proving fraud, undue influence, misrepresentation or mistake, would open the door wide for the arts of the cunning and designing to succeed in their nefarious purposes. Every man who draws a will in his own favor, under such circumstances, should know that he will be required to prove affirmatively all the circumstances connected with the drawing of the will, and that it must appear that the alleged testator was laboring under no mistaken apprehension as to the value of his property and the amount he was giving to his confidential adviser. It has been decided that the beneficiary himself is a competent witness to 'prove the will. ■ He cannot complain, then, that the rule is hard or unjust which requires him to make it clearly appear that the gift to him was the free, intelligent act of the testator. In truth, we were not called on in Erew v. Clarke to re-examine the decision in Boyd v. Boyd. In the latter case it was held merely that upon the evidence there given the judge below was right in submitting the case to the jury. In Frew v. Clarke, upon the trial of the issue of devisavit vel non below, the question had been submitted to the jury, and the verdict sustained the instrument propounded as a will. Mr. Justice Mercur says, in the opinion of the court delivered by him: “ If the mental capacity of McCully (the testator) had been impaired, if he had become weak from age or bodily infirmity, although not to such an extent as to destroy his testamentary capacity, it might have shifted the burden of proof, and required the defendant in error (the legatee) to negative by evidence a presumption of undue influence. It is shown, however, that McCully’s mental capacity was not impaired.” Of course, upon the principle of Boyd v. Boyd, the judgment of the court below had to be afiirmed. There were other questions in the case. Whether the paper propounded was a will or an obligation sealed and delivered inter partes, and whether, conceding it to be testamentary, Clarke, the legatee., was a competent witness to prove it. Upon these questions the court was divided, but not upon the general principle settled in Boyd v, Boyd.

We consider that the case presented on these appeals is entirely within that principle. Had the only question been on the testamentary capacity of John L. Neill there would be reason to hold that there was not sufficient evidence to justify a jury in setting aside the codicil. Had it been drawn without advice and suggestion by Neill himself, as was the original will, it must have stood. But it cannot be disputed that there was evidence, we think enough to carry the case to a jury, that the testator was not the same man physically and intellectually when he executed the codicil as when he made the original will. A jury might reasonably so conclude from the evidence. Then the onus was thrown on Yardley to prove that Neill fully understood the value of his property and the probable residue after paying all his legacies. It would not be proper for us to express any opinion upon the weight of the evidence as bearing upon this question. Upon the issue to be granted, it must be submitted to a jury under proper instructions from the court.

There may be a case where the alleged undue influence is applicable only to a single independent provision in a will, and that provision may fail, leaving the rest of the will to stand. It is certainly not this case, where the clause objected to is a residue, and that residue made up or largely increased by alterations made, as a jury may conclude, under the same influence for that purpose. It may be, however, that if the bequest of the residue in the codicil fail and the rest stands, the general direction of the will in the fourteenth item will apply to the legacies in the codicil as taking the place merely of the legacies from item 20 up to item 39 in the original will. Upon this point we express no opinion. In either case the appellants have an interest to contest the codicil.

Decree reversed. And it is ordered and decreed that the issue prayed for in the court below be granted, and the record remitted fijr further proceedings.


source: Caselaw Access Project

license: Public Domain

text:
    Shakespeare, Administrator, &c., versus Fidelity Insurance, Trust & Safe Deposit Company.
    1. United States bonds deposited by a citizen of another state, in Pennsylvania for safe-keeping, upon a special certificate of deposit, transferable by endorsement with the approval of the company, and upon the surrender of which the bonds are to be returned to the depositor, do not constitute, upon the depositor’s death, a part of his estate within this Commonweath.
    2. If, in such case, an executor of a deceased depositor duly qualifies in the foreign domicile of said depositor, the person with whom the bonds are deposited is justified upon the surrender of the receipt, in giving them up to such executor, notwithstanding the provisions of the Act of March 15th 1832, (1 6, Pamph. L. 136.
    February 7th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county : Of January Term, 1881, No. 49.
    This was an action of trover and conversion by Jamos II. Shakespeare, administrator de bonis non, cum testamento annexo, of the estate of John B. Ackley, deceased, against The Fidelity Insurance, Trust and Safe Deposit Company of Philadelphia, for certain United States coupon bonds deposited with the defendants by the testator in his lifetime for safe-keeping, on special certificate of deposit.
    Upon the trial, May 28th 1880, before Allison, P. J., by agreement of the parties, the jury found a special verdict, setting forth the following facts :—
    John B. Ackley, a surgeon in the United States Navy, died at Pensacola, Florida, in September 1874, leaving a last will and testament upon which letters testamentary were duly granted by thé surrogate of Burlington county, New Jersey, to Ransom Rogers, one of'the executors named therein, on December 16th 1874, the other executor having renounced. Mr. Ackley left surviving him a wife and two children, who resided in Burlington, New Jersey, where the testator was domiciled at the time of his death. Ransom Rogers, the said executor, was then and has since continued to be a resident of Philadelphia. He entered upon the discharge of his duties without being required to give security — security by the laws of New Jersey not being in such case demandable — and subsequently filed an inventory and appraisement of the estate of Mr. Ackley with the surrogate of Burlington county, New Jersey.
    At the time of his death Mr. Ackley was the owner of a number of United States 5-20 coupon bonds, of the face value of $17,400, which he had deposited from time to time for safe-keeping with the defendants, receiving certificates of deposit therefor in the following form.
    The Fidelity Insurance, Trust and Safe Deposit Company.
    No. 11,702. Philadelphia, August 6th, 1878.

      This is to certify that J. B. Ackley, M. D., has deposited with the Fidelity Insurance, Trust and Safe Deposit Company of the city of Philadelphia, for safe keeping:
    U. S. 5-20 consols, 1865’s, 1867’s, 1868’s, . . . $15,400
    [Here follow the numbers, description and amount of the bonds.]
    January, 1874, and after-due coupons attached to all the above bonds.
    U. S. 10-40’s, Nos. 42, 219, 42,220,42,221 ($100 each), 800
    $15,700
    March, 1874, and after-due coupons attached, valued at $15,700, for which the sum of $15.70 had been paid to this company.

      In Consideration Whereof, The said deposit is to be safely kept by this company for the period of one year, and on the expiration thereof, or sooner, if demanded by the said depositor, it shall be returned to him in good order, upon the surrender of this certificate and the identification of depositor, if required. In case of loss of deposit, the option is reserved to the company of either paying for it at the above valuation, or replacing it in kind and amount.

      This certificate is not transferable, except by assignment endorsed thereon, and approved by the company. If the whole or any part of this deposit shall be withdrawn before the expiration of said period, no portion of the charge shall be returned, and if continued longer, it shall be deemed a renewal of the deposit on same terms, for which a like rate shall be chargeable.
    Jas. W. Hazlehurst,
    For Treasurer
    Registered II.
    This certificate must be surrendered on the withdrawal of the deposit.
    Endorsed.
    Received, Philadelphia, December 28th, 1874, of the Fidelity Insurance, Trust and Safe Deposit Company, the within deposit.
    Ransom Rogers,
    Executor of J. B. Ackley, deceased.
    Mr. Ackley received two other certificates, precisely similar in form to the above, for other bonds deposited. All these bonds, at the time of his death, wore in the possession of the defendants.
    The testator, by his will, gave, inter alia, to his widow, “ the third of my property as the law provides, or if she prefers it, I give to her, while she remains my widow, the interest on all bonds that I possess.”
    Rogers, immediately after his qualification as executor, learned from Mrs. Ackley that these bonds were deposited in the Fidelity Company, and obtained from her the certificates of deposit for them, which she had in her possession, and gave her a receipt for them. He presented the certificates, together with the letters testamentary, granted to him in New Jersey, and a certificate from the surrogate that he was the duly authorized executor, whereupon the bonds with the coupons were handed over to him by the defendants, and he gave to the company the receipt endorsed on the certificates. The bonds and coupons were then taken by Rogers to New Jersey, where they were appraised and entered in the inventory of the decedent’s estate, filed by Rogers in the surrogate’s office in Burlington. Rogers, subsequently, in 1875, sold the bonds and misappropriated the proceeds. No notice was given to the defendant by Mrs. Ackley not to deliver the bonds to Rogers.
    Mrs. Ackley and family subsequently removed to Philadelphia, and on November 14th 1878, letters of administration d. b. n. c. t. a.
      were granted upon the decedent’s estate by the register of wills of Philadelphia county, to James H. Shakespeare, the plaintiff, the widow having renounced her right in his favor.
    No creditors of the estate in Pennsylvania had ever appeared, and no debts, so far as known, remained unpaid.
    The court directed the verdict to be entered for the plaintiff subject to the opinion of the court upon the following point reserved, viz.: Is the plaintiff entitled to recover upon the facts found by the special verdict?
    Verdict for the plaintiff for $19,000. Subsequently on June 23d 1880, the court entered judgment for the defendant on the point reserved. No opinion was filed. The plaintiff took this writ of error, assigning for error the entry of judgment fo.r defendant on the point reserved.

      Pierce Archer, for the plaintiff in error.
    Under the statute law of Pennsylvania, as well as by common law, a foreign executor has no title to sue for or intermeddle with the estate of his testator situate within this Commonwealth, and the defendants who had possession of these bonds, under a bailment for safe-keeping, for hire, are responsible for giving them up to one without title. The Act of 1705, which gave validity to foreign letters testamentary, was repealed by the Act of 1832, which prohibited foreign executors from intermeddling with assets here. Since then enabling acts have made exceptions as to certain public securities, but they do not cover United States bonds. The policy of our law is not to permit any part of decedents’ estates to be removed without administration here: Alfonso’s Executors’ Appeal, 20 P. F. Smith 347; Moore v. Fields, 6 Wright 473; Sayre v. Helme, 11 P. F. Smith 299, 301; Reeside v. Reeside, 6 Phila. R. 507; Appeal of Lehigh Coal & Navigation Co., 7 Norris 499. The position of Rogers was that of an executor de son tort, whose every representative ac-t in this state was void. His receipt was valueless: Roumfort v. McAlarney, 1 Norris 197. The uniform course of decisions since the Act of 1832,. has been that the assets here can only be distributed by our Orphans’ Court, upon an account filed by an executor or administrator of the situs, and that all acts without a local administration are void: Dent’s Appeal, 10 Hands 514; Bingham’s Appeal, 14 P. F. Smith 345; Freeman’s Appeal, 18 Id. 151; Van Dyke’s Appeal, 31 Leg. Int. 69; Parker’s Appeal, 11 P. F. Smith 478; Stokely’s Estate, 7 Harris 476. The Act of 1832 enacts that foreign letters testamentary shall not confer any of the powers possessed by an executor under letters granted within this state. This negatives the right to receive a voluntary payment, as well as the right to sue: Scott on the Intestate Law 35. There is no distinction between government bonds and other evidences of property found within the state so far as administration is concerned: Strode v. Commonwealth, 2 P. F. Smith 181; Reading Railroad Co. v. Pennsylvania, 15 Wallace 284. The will created a trust of the bonds for the widow and children^ of which the bailees were bound to take notice, and reasonable care would have required them to give notice to the widow. For their negligence in disregarding both the law and the trust in the will the defendants are liable in trover or case: Safe Deposit Co. v. Pollock, 4 Norris 391; Neiler v. Kelley, 19 P. F. Smith 405.

      A. Sydney Biddle and George W. Biddle, for the defendants in error.
    By the general common law a foreign executor cannot sue for assets in another jurisdiction without taking out letters there, and giving security. But his title is recognised to receive a voluntary payment, and to give a valid acquittance therefor, provided no ancillary letters have previously been granted. The payment being voluntary, the executor has not “ intermedled”: Wilkins v. Ellett, 9 Wall. 740; Wharton Conflict of Laws, 2d ed., sect. 626. The Act of 1832 repealed the Act of 1705, and restored the common law. The sole duty of an ancillary administrator is, after paying domestic creditors, to pay over the assets to the executor of' the domicile. In this case there were no domestic creditors, and the bailees did directly what would have resulted indirectly if they had paid an ancillary administrator. Mrs. Ackley’s security would have been no greater, because Rogers, being domiciled here, could have obtained ancillary letters without giving security. Therefore, even if the delivery to Rogers was a technical conversion, it was damnum absque injuria, and the measure of damages is nominal: Hutchins v. State Bank, 12 Metc. 421.
    But United States bonds are not assets “within this Commonwealth they are not suable anywhere. They could not be attached here as “ goods, chattels and credits of the decedent within this Commonwealth.” Neither could they have been collected by an anciliary administrator, c. t. a., as “such goods, chattels, and credits.” The government was the debtor, and the sit?io of the debt, if anywhere, was at Washington. The situs of the evidence of the debt is nothing. The bonds may have been anywhere within the United States. State laws cannot restrict the transferability of United States securities.
    Apart from any question of administration, Rogers could have sued for the bonds in his own name, as the holder of the certificates of deposit, or he could have assigned the certificates to a third person who could have sued : Moore v. Fields, 6 Wright 467.
   Chief Justice Sharswood

delivered the opinion of the court, March 7th 1881.

This case has been very ably and elaborately argued, and all the authorities examined and commented on. We do not, however deem it necessary to discuss the several questions presented. The main contention of the plaintiff in error is grounded upon the provision of the sixth section of the Act of March 15th 1832 (Pamph. L. 136), that “no letters testamentary, or of administration or otherwise, purporting to authorize any'person to intermeddle with the estate of a decedent, which may be granted out of this Commonwealth, shall confer upon such person any of the powers and authorities possessed by an executor or administrator under letters granted within this state.” In speaking of this act Mr. Justice Woodward remarked in Moore v. Fields, 6 Wright 471: “ This section of the Act of 1832, suggested to the minds of the codifiers by what was said in McCullough v. Young, 1 Binn. 63, was merely declaratory of the common law, according to which the title of executors and administrators cannot de jure extend beyond the territory of the government which grants it, and the movable property therein.” It has been earnestly maintained that upon the proper construction of the statute the foreign executor or administrator not only cannot sue in the courts of this state, for any of the debts or assets of the decedent, which certainly must be conceded to be settled; but that he cannot receive or give a valid acquittance upon a voluntary payment or delivery, even where it does not appear that there are any domestic claimants upon the estate. The current of authorities, where the rule of our statute is recognised as the common law, does not sustain this position : Williams v. Storrs, 6 Johns. Ch. 357; Parsons v. Lyman, 20 New York 112; Klein v. French, 57 Miss. 667; Wilkins v. Ellett, 9 Wall. 740. The point has never been decided in this state. We do not think it necessary to decide it in this case.

. There is another point which, we think, disposes of the question upon this record. We do not consider that the United States coupon bonds which are the subjects of this controversy, were at the time of the death of the decedent, any part of his estate in this Commonwealth. The defendants were the mere depositaries of the bonds for safe-keeping. They were, therefore, in the possession of the decedent. He held the certificate of their deposit. The defendants were bound to restore the bonds at any time to the lawful holder of the certificate. It was as if the bonds had been placed in a fire-proof of the defendants, of which the decedent possessed the key. In point of fact, the certificate was in the actual possession of the widow of the decedent in New Jersey. She surrendered it as she was bound to do, to the foreign executor. She could not have withheld it. The New Jersey executor could have sued her, and compelled its delivery to him. The Pennsylvania administrator certainly could not. By the terms of the certificate it might be transferred by assignment indorsed thereon and approved by the company. The foreign executor could' haye so assigned it, and his assignee could have sued for the delivery of the bonds, in his own name. The assignment would have been a sale of the bonds, which were payable to bearer, and passed by delivery. Whoever showed a legal title to the certificate had a right to the possession of the bonds. The case, then, is within the principle of Moore v. Fields, supra, where it was held that, whore a debt fixed by a decree or judgment of the court of another state in favor of a foreign administrator, is due by citizens of Pennsylvania to the estate of a decedent, the administrator of the foreign domicile may sue lor and recover it in his own name.

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Orcutt’s Appeal.
    1. In order to render personal property of a decedent liable to eollateral inheritance tax, under the laws of this state, it must have a situs within the Commonwealth.
    2. The bonds of the United States, no matter where deposited, cannot be said to have a situs different from the domicile of their owner.
    3. The collateral inheritance tax does not attach to the very articles of property of which the deceased dies possessed. It is imposed only on what remains for distribution after expenses of administration, debts, and rightful claims of third partios are paid or provided for. It is on the net succession to the beneficiaries, and not on the securities in which the estate of the deceased was invested.

      4. Estates not passing by a will that is operative within this state, or under the intestate laws thereof, or by deed or grant intended to take effect after the death of the decedent, are not subject to collateral inheritance tax under the laws of this Commonwealth.
    5. A., a citizen of New Jersey, died domiciled there, having at the time of his decease certain United States bonds deposited with 15. in this Commonwealth, which bonds were overdue. A. by his will left all his estate to persons not citizens of this Commonwealth and not domiciled here, and nominated C. as his executrix, who was domiciled in New Jersey. The will was admitted to probate in New Jersey, and letters thereon granted there to O. C. demanded the bonds of B., who declined to deliver them, but at O.’s request look out ancillary letters of administration e. t. a. in Pennsylvania, collected tlie amount of the bonds and filed his account. A. had no creditors in Pennsylvania. Held, that the fund produced lacked some of the ingredients of liability above referred to, that neither the bonds themselves nor their proceeds ever had any situs other than that of the testator or his executrix, that it did not sufficiently appear that upon final distribution any portion of the fund would go to collateral legatees, and that therefore it was not liable for collateral inheritance tax under the laws of this Commonwealth.
    6. The Act of April 10th 1849, sect. 13, Pamph. L. 572, providing in general terms that if any non-resident of the state should die leaving real or personal estate within this Commonwealth, the same should ho subject to the payment of collateral inheritance tax, was intended to embrace only personal property of a tangible nature, actually situated or used for business purposes within the Commonwealth, and was never intended to apply to the kind of personal property from which the fund in this case was realized.
    7. Whether said act was repealed by the Act of April 22d 1858, sect. 9, Pamph. L. 470, not decided.

      February 8th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1880, No. 97.
    This was an appeal by Lydia Ann Orcutt, executrix of the estate of Wesley Grindle, deceased, under letters testamentary, granted in New Jersey, from the decree of the said Orphans’ Court, dismissing her exceptions to the adjudication on the account of the Fidelity Insurance, Trust and Safe-Deposit Company, administrators c. t. a. of the said decedent in Pennsylvania, and confirming the said adjudication.
    The facts, as stated in the adjudication of the auditing judge, Hanna, P. J., were as follows:
    “Wesley Grindle was a citizen of and domiciled in the state of New Jersey, and died in that state on the 12th day of June 1879. His last will and testament, dated the 27th day of March 1879, was admitted to probate in the surrogate’s office at Camden, New Jersey, on the 31st day of October 1879, and letters testamentary granted to Lydia Ann Orcutt, the executrix named therein, on the 6th day of December 1879. The decedent had on deposit with the Fidelity Insurance, Trust and Safe-Deposit Company of the city of Philadelphia $24,000 in bonds of the 10-40 loan of the United States, which had been called for redemption, and, being overdue, only awaited the intervention of decedent’s legal representative to be converted into money.
    “ The Fidelity Insurance, Trust and Safe-Deposit Company declined to deliver the bonds to the executrix, being advised that it was needful for their protection to require ancillary letters to be granted in Pennsylvania. The executrix, being a resident of New Jersey, was incompetent to take letters testamentary in this state without entering security. In order to obtain possession of the bonds in. question for the purposes of her administration, she therefore requested that ancillary letters of administration cum testamento annexe be granted by the register of wills of this county to the present accountants. Letters were accordingly granted to them on the 20th day of January 1880. The bonds were disposed of, and the proceeds constitute the subject of this account.
    “ This administration is purely ancillary to that of the executrix in New Jersey, and the fund remaining in the hands of the accountants, after deduction of all charges, is to be awarded to her ' for administration according to the terms of the will. By the will, with the exception of a legacy of $2000 to the testator’s mother, the entire estate is bequeathéd, in unequal proportions, to the testator’s brothers and sistei’s. All the legatees reside in the states of New Jersey and New York, and none in this state.
    “ In view of these facts, it was claimed on behalf of the executrix and legatees that the fund was not liable to the tax on collateral inheritances imposed by the laws of Pennsylvania, and should bo awarded to the executrix of the domicile without charge therefor. The auditing judge is, however, of the opinion that the whole estate, excepting the legacy of $2000 to the decedent’s mother, is subject r,o the tax in question, and accordingly awards the same to the register of wills of Philadelphia county.”
    To this adjudication Lydia Ann Orcutt filed the following exceptions :
    1. Because the decedent being conceded to have been at his death domiciled in and a citizen of the state of New Jersey, where his will was admitted to probate, the learned judge erred in ruling that any collateral inheritance taxes accrued to the Commonwealth of Pennsylvania upon the funds for distribution in the hands of the present accountants, who were merely ancillary administrators with the will annexed of such decedent.
    2. Because the learned judge erred in not reporting and awarding the whole balance in the hands of the accountants to this exceptant without any deduction therefrom as for collateral inheritance taxes alleged to be due to the Commonwealth of Pennsylvania.
    The court, after argument, entered a decree dismissing the exceptions, and confirmed the adjudication.
    Lydia Ann Orcutt took this appeal, assigning the decree for error.

      Joseph B. Townsend, for the appellant.
    The question whether the personal estate, and choses in action in this state, t>f a decedent, who was at his death domiciled and resident in another state are liable to the collateral inheritance tax imposed by the law's of Pennsylvania, has long been doubted by the bar. Under the Act of April 7th 1826, Purd. Dig. 214, which first imposed collateral inheritance tax (and its supplement of April 22d 1846, Purd. Dig. 215, which increased the rate from two and one-half to five per cent.) the property taxable “being within this Commonwealth” was only such as may be left for distribution among legatees or volunteers after payment of debts and expenses of administration: Commonwealth’s Appeal, 10 Casey 204. IIow is it possible to ascertain, in this case, what will he left, until after the executrix in New Jersey shall administer this ancillary fund with the rest of the estate ? The New Jersey court can alone ascertain the balance for distribution among legatees.
    The Act of March 11th 1850, sect. 3, Purd. Dig. 216, declares that the words “being within this Commonwealth,” in the Act of 1826, shall be so construed as to relate to all persons who have been at the time of their decease, or may now be domiciled within this Commonwealth, as well as to estates.

    The Act of April 10th 1849, sect. 4, Purd. Dig. 215, docs in terms provide for the imposition of the tax on real or personal estate within this Commonwealth, belonging to non-residents at the time of their death. This act is entitled “ An Act to create a sinking fund and to provide for the gradual and certain extinguishment of the debt of the Commonwealth,” Pamph. L. 571.
    This Act of 1849, was, I assert, absolutely repealed by the Act of April 22d 1858, Pa’mph. L. 470, entitled “An Act to establish a sinking fund for the payment of the public debt,” the eighth section of which provides, “ that the Sinking-Eund Act of 1849, and all laws inconsistent herewith, are hereby repealed.” But sects. 11, 13 and 14 of the Act of April 10th 1849, have been reprinted in all the subsequent editions of Purdon’s Digest with the following foot note by Mr. Brightly: “ This is a portion of the Act of 1849, ‘ to create a sinking fund;’ but the ninth section of the Act 22d April 1858, has expressly repealed ‘the Sinking-Eund Act of 1849.’ These sections, however, are retained in the digest, because it is impossible to suppose that the legislature intended, by this general repealing clause, to abrogate them ; if the Act of 1858 has that effect, it was unadvisedly passed, and will, no doubt, be corrected. It is an instance of careless legislation which cannot be too severely reprobated. ” .
    If there is any force in legislative language, the repeal of the 11th, 13th and 14th sections of the Sinking Eund Act of 1849 was just as surely effected as the repeal of its other sections. Unless Mr. Brightly’s notion, that the legislature did not comprehend what they were doing, is to have the force of a re-enactment of these sections, they do stand absolutely repealed.
    It was settled in Short’s Estate, 4 Harris 63, decided in 1851, after the Act of 1849 was passed, and before it was repealed, that the personalty of a citizen of Pennsylvania, whether derived from within the state or from any other state or county, was liable to the tax. This position has never been questioned. The legacy duty under the English statutes is applied in exactly the same way: In re Ewin, 1 C. & J. 157; Att’y-Gen. v. Napier, 6 Exch. 217, 220.
    If the rule thus settled, both here and in England, be unquestioned, on what principle of justice or right ought the personalty of' citizens of other states found here to be taxed ? The only two cases which give any color of judicial authority for the imposition of the tax in a case like the present are Alexander’s Estate, 4 Penna. Law Jour. 448, decided by Judge King in 1845, and Commonwealth v. Smith, 5 Barr 142. In the former Judge King held, in analogy to what were then the decisions of the English courts under their legacy-duty acts, that the personalty of a nonresident decedent was liable to this tax. But the English cases which he relied on have been overruled in England, and the contrary rule established there': Thomson v Advocate-General, 13 Simons 153; Att’y-Gen. v. Napier, supra; 3 Williams on Executors (6th Am. ed.) 1745.
    In Commonwealths. Smith, 5 Barr 142, decided in 1847, the decedent, though he died in France, where he had resided some years prior to his death, called himself in his will “ of the city of Philadelphia.” The ease, though mainly argued on the other ground, might well have been decided on the ground that the decedent was still a citizen of Pennsylvania. The dictum in the opinion of Bübnside, J., that domicile had nothing to do with the question, does not touch the reason of the decision.
    Analogous decisions in the United States Courts are in our favor: Railroad Co. v. State of Pennsylvania, 15 Wall. 300; Murray v. City of Charleston, 6 Otto 433; Kintzing v. Hutchinson, 7 W. N. C. 226; Allen v. Philadelphia Sav. Fund, Id. 231. See also McKeen v. Northampton County, 13 Wright 519; Hilliard on Taxation 132.
    There being no creditors or claimants in Pennsylvania, the case is not within the ruling of Dent’s Appeal, 10 Harris 515, and kindred cases. If the rule adopted by the court below shall prevail, there will be double taxation in all cases where the state of which the decedent was a resident has a law imposing a collateral inheritance tax.
    The Commonwealth was not represented by counsel.
   Mr. Justice Sterrett

delivered the opinion of the court, May 2d 1881.

The fund for distribution, $22,029.02, as shown by the account of the ancillary administrator, is the net proceeds of United States ten-forty bonds, which belonged to Wesley Grindle, a citizen of the state of New Jersey, and domiciled therein at the time of his decease in June 1879. The bonds deposited by the decedent with the Fidelity Insurance, Trust and Safe Deposit Company of Philadelphia for safe keeping, had been called for redemption, and being over due, wore payable on presentation at the United States Treasury. By his last will and testament the decedent gave a legacy of $2000 to his mother, and bequeathed the entire residue of his estate, in equal proportions, to his brothers and sisters, all of whom reside in the states of New Jersey and New York. The will was probated in New Jersey, and in December 1879 letters testamentary were duly granted by the surrogate to appellant, the executrix therein named. The Fidelity Company, claiming that for its protection ancillary letters should be taken out in this state, declined to deliver the bond to the executrix. Letters of administration were accordingly granted by the register of wills in Philadelphia to the accountant, who collected the bonds and filed an account showing the above balance of cash on hand. The administration under these letters was purely ancillary to that of the executrix in New Jersey, and inasmuch as there appear to he no creditors, legatees or distributees in this state, the fund, after deducting all proper charges, must be awarded to her for administration according to the laws of New Jersey and the provisions of testator’s will.

We are not called upon to express any opinion as to whether under the circumstances the demand of the Fidelity Company was reasonable or not. It was acquiesced in, and the single question presented by the assignments of error is, whether the residue of the fund, after deducting court costs and the legacy of $2000 to testator’s mother, is subject to collateral inheritance tax under the laws of this state. The learned president of the Orphans’ Court held that it was, and he accordingly decreed the payment of $1100.28 to the register of wills for collateral inheritance tax, and the residue to the executrix in New Jersey for administration and distribution there.

The first act on the subject of collateral inheritance taxes, passed in 1826, provides that all estates, real, personal or mixed, passing from any person who may die seised or possessed of such estate, being within this Commonwealth, either by will or under the intestate laws thereof, to any person other than to father, mother, husband, wife, children or lineal descendants, shall be liable to a tax; and makes it the duty of all executors, administrators and their sureties to pay the same : Pamph. L. 227. By. the Act of 1850, the words “being within this Commonwealth,” in the Act of 1826, were construed “ to relate to all persons, who have been at the time of their decease, or may now be domiciled within this Commonwealth, as well as to estates ; and this is declared to be the true intent and meaning of said act:” Pamph. L. 170.

Shortly after the passage of the latter act, it was decided in Short’s Estate, 4 Harris 63, that personalty of a citizen of Pennsylvania, derived either from within or without the state and passing to others than those named in and excepted by the terms of the original act, was liable to the tax. This position has never been questioned. Nor can there be any doubt as to real estate situated within the Commo.nwealth. Whether the person dying seised or possessed thereof be a citizen of the state or not, so much thereof as passes to collaterals is subject to the tax, because it has a situs within the state, and the title must be transmitted according to our laws governing the conveyance or descent of real estate. It is only in regard to personal property of non-residents that any question can arise. The general rule undoubtedly is, that the situs of personal property follows the domicile of the owner; but for particular purposes some species of personal property may have an actual situs distinct from the legal one.

This qualification of the rule, however, cannot apply to the kind of property from which the fund in this caso was realized. The bonds were simply evidences of indebtedness, not by any person or corporation within the Commonwealth, but by the general government. There is no reason why such property should, for any purpose, have a situs different from the domicile of its owner. The testator intrusted the bonds temporarily, for safe-keeping, to the Fidelity Company, but they were, constructively at least, in his possession at the time of his decease. There were no creditors, legatees, or distributees in this state claiming them or any portion of the proceeds thereof; and in the absence of creditors or other interested parties in this state claiming administration here, 1 can see no good reason for refusing to deliver the bonds to the executrix. As it is, however, the fund here is in the hands of a purely ancillary administrator, whose sole function was to receive from the United States treasury the amount called for by the bonds and transmit the same, less costs and charges, to the executrix in New Jersey for administration according to the laws of that state, and the directions of the testator. It is true that if creditors or distributees residing here had intervened and demanded distribution or payment directly from the accountant, the Orphans’ Court in its discretion might have heard them, and might also have permitted foreign creditors to present their claims; but that is a matter of judicial discretion, not of right: Dent’s Appeal, 10 Harris 514.

It is also clear from the act itself, as well as from the construction it has heretofore received, that the property taxable is such only as passes to volunteers, persons not excepted by the terms of the act. The tax does not attach to the very articles of property of which the deceased died possessed. It is imposed only on what remains for distribution after expenses of administration, debts and rightful claims of third parties are paid or provided for. It is on the net succession to the beneficiaries and not on the securities in which the estate of the decedent was invested: Commonwealth’s Appeal, 10 Casey 204; Strode v. Commonwealth, 2 P. F. Smith, 181. How then is it possible to impose a tax on this fund when it has never been ascertained judicially how much, or whether any of it will go to the collateral legatees ? When the executrix charges herself with the fund received from the ancillary administrator and settles her account in New Jersey, who can tell how much of it may be successfully claimed by creditors and others as against the legatees ? The court of the testator’s domicile is the only one that can properly determine how much of it will ultimately go to the collateral legatees.

Again, by the very words of the act, the tax is not only limited to such estates as have a situs within the Commonwealth, and also pass to collateral heirs or legatees, but it is further restricted by defining the mode in which they shall pass, viz., estates “being within this Commonwealth,” and “passing from any person,” &c., either by will or under the intestate laws thereof,” &c. It is clear, therefore, that estates not passing by a will that is operative within the state, or under the intestate laws thereof, or by deed or grant intended to take effect after the death of the decedent, are not within the purview of the_ act. Devolution, either under the intestate laws of the Commonwealth, or under a properly executed will, is clearly made a condition of liability to the tax. To render estates liable to the tax therefore, they must in the first place have a situs within the Commonwealth, and in the second place, they must pass, in one or other of the modes prescribed, to the collateral heirs or distributees intended by the act.' We are of opinion that the fund in question lacks at least some of the ingredients of liability above referred to. Neither the bonds themselves, nor their proceeds ever had any situs other than the domicile of the testator or his executrix ; and while the will is sufficient to pass personal property in this state, it does not yet appear that upon final administration and distribution any part of the fund will go to the collateral legatees.

The Act of April 10th 1849, provides in general terms that if any non-resident of the state shall die leaving real or personal estate within this Commonwealth the same shall be subject to the payment of collateral inheritance tax. It is contended that this act was repealed by the Act of April 22d 1858. Without passing on that question, we are of opinion that the act was never intended to apply to the kind of personal property from which the fund in this case was realized. It was doubtless intended to embrace only personal property of a tangible nature, actually situated or used for business purposes within the Commonwealth, and not to mere certificates of indebtedness, such as government bonds, whose situs necessarily follows the owner’s domicile.

Decree reversed and it is now adjudged and decreed that the residue of the fund, viz., twenty thousand and five dollars and fifty-two cents, less the costs of this appeal, be paid to the appellant, Lydia Ann Orcutt, executrix of the last will of Wesley Grindle, deceased, for administration and distribution according to the laws of the state of New' Jersey and the provisions of said testator’s will; and it is further ordered that the costs of this appeal be paid by the appellee out of the fund in hand.