—Hannah Enston died at Spartansburgh, South Carolina, on the 26th day of October, 1886. At the time of her death she was a resident of Philadelphia, in the state of Pennsylvania, and she had never been a resident of or domiciled in this state. She left a last will and testament, which was admitted to probate in the surrogate’s court of Kings county. She had an estate amounting to *570about one million of dollars, which, by her will she disposed of to her collateral relatives and to strangers in blood. One of her executors resided in the county of Kings and the other at Philadelphia; and all the legatees but one were-non-residents of this state. Nearly all her property was. invested by her agents, residing in the city of Brooklyn,, and was managed by them. After making certain deductions there was left, as held by the surrogate, for the purposes of taxation under the act (chapter 483 of the Laws of' 1885), $843,541.11, consisting of the following property:.: real estate situate in the county of Kings, $125,575; bonds-secured by mortgages upon real estate in the state of New York, $471,650; and promissory notes and bonds of municipal corporations, and stocks and bonds of other and foreign corporations, $246,816.11. Upon this property the surrogate made an order directing the executors to pay a tax of $42,107.05. From the order of the surrogate the executors appealed to the general term, where the order was affirmed, and they then appealed to this court.
It is not questioned that this tax would have been proper under the act referred to, if Mrs. Enston had at the time of her death been a resident of this state. But her executors claim that as she was not a resident of this state, there is no law imposing or requiring payment of this tax.
For the .purpose of determining whether this tax was properly exacted, we must construe section one of the act of 1885, as that section is the only one which describes the property to be taxed under the act, and it is as follows:
“ Section 1. After the passage of this act, all property which shall pass by will or by the intestate laws of this state, from any person who may die seized or possessed of the same while being a resident of the state, or which property shall be within this state, or any part óf such property, or any interest therein, or income therefrom,, transferred by deed, grant, sale or gift, made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, to any person or persons, or to a body politic or corporate in trust or otherwise or by reason thereof any person or body politic or corporate, shall become beneficially entitled, in possession or expectancy, to-any property orto the income thereof, other than to or for the use of father, mother, husband, wife, children, brother and sister and lineal descendants, born in lawful wedlock, and the wife, or widow of a son, and the husband of a daughter, and the societies, corporations and institutions now exempted by law from taxation, shall be and is subject to a tax of five dollars on every hundred dollars of the clear market value-of such property, and at and after the same rate for any less amount, to be paid to the treasurer of the proper-*571county, and in the city and county of New York, to the comptroller thereof, for the use of the state, and all administrators, executors and trustees, shall be liable for any and all such taxes until the same shall have been paid as hereinafter directed; provided, that an estate which may be valued at a less sum than $500, shall not be subject to the said duty or tax. ”
The section is singularly involved and obscure in its phraseology, and the precise legislative intent is very far from being clear. But we must grapple with the difficulties which the section presents as well as we can, and by a fair construction of the language used, give effect to what we believe to have been the purpose of the legislature.
The tax imposed by this act is not a common burden upon all the property, or upon all the people within the state. It is not a general but a special tax, reaching only to special cases, and affecting only a special class of persons. The executors in this case do not, therefore, in any proper sense, claim exemption from a general tax or a common burden. Their claim is that there is no law which imposes such a tax upen the property in their hands, as executors. If they were seeking to escape from general taxation, or to be exempted from a common burden imposed upon tire people «£ the state generally, then the authorities cited by the learned counsel for the people, to the effect that an exemption thus claimed must be clearly made out, would be applicable. But the executors come into court claiming that the special taxation provided for in the law of 1885, is not ap plicable to them, or the property which they represent In such a case they have the right, both in reason and in justice, to claim that they shall be clearly brought within the terms of the law before they shall be subjected to its burdens. It is a well established rule that a citizen cannot be subjected to special burdens without the clear warrant of the law The following authorities furnish the true rule applicable to such a case: Cooley on Taxation (2d ed.), 275; United States v. Wigglesworth, 2 Story, 373; Powers v. Barney, 5 Blatch, 203; United States v. Watts, 1 Bond., 583, Doe v. Snaith, 8 Bing., 152; Green v. Holway, 101 Mass., 248.
The section imposes a tax very plainly upon two classes of property by clauses. (1) Upon all property which “ shall pass by will, or by the intestate laws of this state, from any person who may die seized or possessed of the same while being a resident of the state.” (2) Upon property which shall be within this state transferred inter vivas, to take effect at the death of the grantor or bargainor. It is claimed on behalf of the people, that the words, “ or which property shall be within this state,” were added to the prior language, which included only property left by residents of the state, so as to include all property, whether owned at death by a *572resident or non-resident. If that had been the result sought-by the draftsman of the act, it would have been easy in simple language to have covered all the property within the-state which might pass by will or intestacy from any person whatever.
If the construction claimed by the people be the correct one, then we have the peculiar feature, that as to the second class provided for in the act (of property transferred inter vivos to take effect at death), instead of beginning with “all property,” as was previously done as to the first class, we find the singular language, “any part of such property or any interest therein, or income thereof, transferred,” etc. Would any intelligent person have used such language to describe all property, or all the property of a certain class? We think the most obvious construction is that the first class was intended to embrace all property passing by will or intestacy upon which it was intended to impose a tax, and that what immediately follows relates exclusively to property transferred within the state inter vivos, and should be read consecutively as'follows: “Which property shall be within this state, or any part of such property, or any interest therein, or income thereof, transferred by deed, grant, sale or gift,” etc.
The sentence could more properly have been constructed, as follows: “Which property, or any part of such property, or any interest therein, or income therefrom, shall be within this state transferred by deed, grant, sale, gift,” etc. The property meant by the words “ which property” is not entirely certain. Its most natural meaning is the same property mentioned in the prior part of the section, and that had reference only to property owned by a resident of the state.
As such transfers of property inter vivos are very rare in the transactions of men, it is probable that the purpose of that provision was to defeat an evasion of the statute by persons whose property had been made liable to taxation by the previous portion of the section, to wit: residents of the state. It is not probable that the draftsman had in contemplation that a non-resident of the state would come here and make a transfer of property inter vivos, to take effect at his death. There would be no occasion for him to do it, as the previous portion of the section had imposed no-succession tax upon the property which he, as a non-resident, should leave; and yet the broad language used may be so construed as to include transfers inter vivos made by both residents and non-residents; and for the purposes of' this case it does not matter which of those two constructions-be given to that portion of the section.
"We are, therefore, of opinion, in view of the inapt phra*573seology used, that there was no intention by that section to impose a succession tax upon property passing by will or intestacy from a non-resident of the state to his collateral relatives.
The people claim some support for their construction of section 1 from section 11, which reads as follows: “Whenever any foreign executor or administrator shall assign or transfer any stocks or loans in this state, standing in the name of a decedent, or in trust for a decedent, which shall be liable to the said tax, such tax shall be paid to the treasurer or comptroller of the proper county on the transfer thereof, otherwise the corporation permitting such transfer shall become liable to pay such tax.”
It must be observed that that section imposes no tax. Section 1 does that, and it is upon that section alone that-reliance can be placed for the exaction of this tax. But it is proper to look at section 11, so far as it may throw light upon section 1. There may be cases where all the executors or administrators are non-residents of the state, and, therefore, not within the jurisdiction of our courts; and such, executors or administrators may assign or transfer stocks- or bonds in this state, and provision is here made for the-collection of the tax in such cases. Section 15 is also-referred to, and that is as follows: “ The surrogate’s court in the county in which the real property is situate, of a decedent, who was not a resident of the state, or in the county of which the decedent was a resident at the time of his death, shall have jurisdiction to hear and determine all questions in relation to the tax arising under the provisions of this act.” That speaks of the real property of a nonresident decedent situate within this state; hence the claim is made that the statute evidently contemplates that a tax may be imposed upon the real estate of a non-resident decedent. This section is very bungling and uncertain. The draftsman evidently had in mind that there might be some case in which a non-resident decedent might leave real estate in this state which would be subject to taxation under the act. This section certainly can have no operation, as it imposes no tax unless section 1 has imposed a tax in some case upon the real estate within this state of a non-resident decedent. An inference cannot be drawn from this section that section 1 authorizes the imposition of any - tax upon the personal property of a non-resident decedent, because the section is expressly confined to the real property of such a decedent, and unless such a decedent leaves real property within this state, no jurisdiction is conferred upon a surrogate to determine the questions in relation to the tax arising under the provisions of the act. But there might be a case, if section 1 be construed to-*574impose a tax upon all property transferred within this state inter vivos, where the real estate of a non-resident situate within this state would be liable to .the tax, and in this way some force and effect could be given to section 15.
There is certainly nothing in this act imposing a succession tax upon the stocks, bonds and other choses in action left within this state by a non-resident decedent. It is a general rule of law that such property attends the owner and has its situs at his domicil. It is true that that is a fiction of the law, but it is a fiction which must prevail unless there is something in the policy of the statute or its language which shows a different legislative intent. Hoyt v. The Commissioners, 23 N. Y., 224; People v. Smith, 88 id., 576.
The corporate stocks of the decedent were not, under the general laws of this state,taxable here, although the share certificates may have been held here by her agents. The certificates are in no general sense property. They simply represent interests in the corporations, and the situs of the property owned by a shareholder in a corporation is either where the corporation exists or at the domicile of the shareholder; it can m no proper sense be said to be where the certificates happen to be in the hands of an agent in a state where the corporation has no existence and the owner no domicile. So too the bonds of foreign corporations in the hands of the agents of the decedent here were not, in a legal sense, property within, this state, and they were not under the general laws or the policy of the state taxable here. Nor were the mortgages taxable here. On the contrary they were by the general policy of the state exempted from taxation here. 1 R. S., 389, § 5, as amended by chapter 176 of the Laws of 1851, § 2; 1 R. S., 419, § 3; Williams v. The Board of Supervisors, 78 N. Y., 561.
There is nothing in the act of 1885 from which it can be inferred that the legislature meant so far to depart from its .general system and policy of taxation as to impose here a -succession tax upon property thus situated. It was dealing with taxation upon the property of persons domiciled here -and used language sufficient to impose taxation upon such property, but not upon property of non-residents which had no situs in this state.
It cannot be presumed that it was the intention of the legislature to impose taxation upon all the property of any decedent found within this state. Suppose a foreigner should come here with negotiable securities in his possession, for the purpose of buying property here, and soon after should die here. Or suppose a merchant should come here from some other state with drafts or negotiable securities in his possession, and should die here shortly after reaching this state; can it be supposed m either of such cases that it' was the legislative intent that before the property of the *575decedent could be taken out of this state to the jurisdiction of his domicil, it should be subjected to a tax to enhance the revenues of the state ? Then again, if this act is to be so construed as to reach personal estate of non-resident decedents, how is it to be administered % There are no means of ascertaining here how much of the estate will pass to collateral relatives under a will, or by intestacy. That can only be known after the entire expenses of administration and the debts and liabilities of the deceased have been ascertained and deducted at the place of his domicil. Suppose a non-resident dies, leaving a million of dollars in this sta te, and is largely indebted at the place of his domicil, what his net estate will be after deducting debts and expenses of administration can only be ascertained at his domicil, where his estate must be finally administered and adjusted, and there can be no way of adjusting the estate here, as there is no machinery in the law here appropriate-to such a purpose; and thus it would be impractical to administer this statute. Still further, if a succession tax is demanded and paid here upon the property of anon-resident decedent, that does not answer a claim for a further tax at the place of the decedent’s domicil; and thus his estate might,, and many times would be, subjected to a double succession tax. There is in the state of Pennsylvania, a law for the-taxation of collateral inheritances,like that which exists here,, and if this estate be subjected to this tax in this state, it may again be subjected to a like tax in that state. All these considerations should lead us to hesitate to put upon section one, such a construction as would bring within its. purview, the property of a non-resident decedent, left in this state at his death.
Upon some of the questions here discussed the Case of Orcutt's Appeal (97 Penn. St., 179) is an instructive authority.
By chapter 713 of the Laws of 1887, section 1 of the act of 1885 was so amended as to subject to its operation the property within this state of a non-resident decedent, and this amendment furnishes some evidence that prior thereto the proper construction of the section, according to the-understanding of the legislature did not include within its operation such property.
We are, therefore, of opinion that the judgment of the general term and the decree of the surrogate should be reversed and the proceedings dismissed, with costs in all the courts to the appellants.
“ Earl, Peckham and Gray, JJ., concur; Danforth, J., reads dissenting opinion- Finch, J., concurs- Ruger,. Ch. J., not voting.”
*576Statement by Danforth, J.
The will of Hannah Enston was admitted to probate by the surrogate of Kings county on the 4th of November, 1886. Joel W. Sherwood, of that county, and Robert J. Miller, of Pennsylvania, were appointed her executors. The real estate and personal property involved in this proceeding at the time of the death of testatrix were "in this state. On the 25th day of April, 1887, the surrogate of Kings county made an order upon due notice that the executors pay out of the assets of their testatrix •a tax of $42,107.05, theretofore assessed under the act of 1885, chapter 483, entitled “an act to tax gifts, legacies and collateral inheritances in certain cases.” The executors appealed to the general term, where the order was affirmed, and from that order of affirmance they appeal to this court. So much of the statute as is material to the question raised by them is as follows:
“Section 1. After the passage of this act, all property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same while being a resident of the state, or which property shall be within the state, or any part of such property, or any interest therein, or income therefrom, transferred by deed, grant, sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor to any person or persons, or to a body politic or corporate, in trust or otherwise, or by reason whereof any person or body politic or corporate shall become beneficially entitled, in possession or expectancy, to any property or to the income thereof other than to or for the use of father, mother, husband, wife, children, brother and sister and lineal descendants, born in lawful wedlock, and the wife or widow of a son, and the husband of a daughter, and the societies, corporations and institutions now exempted by law from taxation, shall be, and is subject to a tax of five dollars on every hundred dollars of the clear market value of such property, and at and after the same rate for any less amount, to be paid to the treasurer of the proper county, and in the city and county of New York to the comptroller thereof, for the use of the state, and all administrators, executors and trustees shall be liable for any and all such taxes until the same shall have been paid as hereinafter directed; provided that an estate which may be valued at a less sum than five hundred dollars shall not be subject to said duty or tax.”
“Section 11. Whenever any foreign executor or administrator shall assign or transfer any stocks or loans in this state, standing in the name of a decedent, or in trust for a *577decedent, which shall be liable to the said tax, such tax shall be paid to the treasurer or comptroller of the proper county on the transfer thereof, otherwise the corporation permitting such transfer shall be liable to pay such tax. * * * ”
“Section 15. The surrogate’s court in the county in which the real property is situate of a decedent who was not a resident of the state, or in the county of which the decedent was a resident at the time of his death, shall have jurisdiction to hear and determine all questions in relation to the tax arising under the provisions of this act, and the surrogate first acquiring jurisdiction hereunder shall retain the same to the exclusion of every other.”
It appears that Hannah Enston died on the 26th day of October, 1886, at Spartansburg, South Carolina.
That she never resided or had her domicile in the state of New York, but at the time of her death resided and had her domicile in Philadelphia, in the state of Pennsylvania.
That she left real estate situated in the state of New York, of the clear market value of $125,575, and personal property, consisting of bonds secured by mortgage upon real estate in the state of New York, of the clear market value of .$471,650, and promissory notes and bonds of foreign municipal corporations, and stocks and bonds of other foreign corporations of the fair market value of $246,816.11, all of which she devised and bequeathed to nephews and nieces and strangers in blood.
That the said personal securities were at the time of her death within the state of New York.
That the moneys invested in the said bonds and mortgages had been sent into this state for investment by said testatrix to an agent, by whom they were thus invested, and the securities remained in this state for collection; and, as it also appears, that the entire estate left by the testator amounted to an appraised value of $1,098,602.61, and from this sum was deducted as exempt from taxation the appraised value of property not within the state, and certain expenses, also government bonds, and a certain legacy to the testatrix’s sister, leaving the total amount properly subject to taxation, $843,541.11.
Upon these facts, the surrogate directed that the tax of five per cent, provided for by the act of 1885 (supra), was due from the executors, and should be paid to the treasurer of Kings county.