JOSEPH R. WALKER, administrator with the will annexed, vs. TREASURER AND RECEIVER GENERAL.

RUGG, C. J. This is a petition [Note p600] brought by the administrator with the will annexed of the estate of Anna Eliza Barnard, late of Sheffield in this Commonwealth, to determine the liability of that estate to the Commonwealth for a succession tax in respect of certain property held in trust by the Mercantile Trust and Deposit Company of Baltimore, a corporation having its usual place of business in Baltimore in the State of Maryland. James McHenry Boyd, the first husband of the testatrix, died in 1849. By his last will, duly allowed by the court of appropriate jurisdiction in Maryland, the State of his domicil, he left the residue of his estate to Maryland trustees, in trust, to pay the income to the testatrix during her life and upon her death to pay the principal to her heirs or to such persons as she might by

Page 601

will designate. The testatrix died in 1911, leaving as her heirs at law three children of a subsequent marriage. Her will disposed of certain real estate in Sheffield and personal property and gave the residue, including the trust fund here in question, to the Mercantile Trust and Deposit Company of Baltimore upon certain trusts. The corpus of the Boyd trust fund at the time of the death of the testatrix and since was personal property in the hands of the Mercantile Trust and Deposit Company and held in possession continuously outside this Commonwealth and within the State of Maryland. The validity of the testamentary disposition by Mrs. Barnard of the fund in the hands of the trust company is challenged, but that point in the view we take of the case is not of decisive consequence upon the issue here depending.

The question to be decided is whether such personal property is under these circumstances subject to the succession tax imposed by our statutes. [Note p601] The tax thus imposed is strictly an excise and

Page 602

not a property tax. The privilege of passing the title to property is the commodity upon which the excise is laid. Minot v. Winthrop, 162 Mass. 113.

It is an implied condition of all statutes relating to taxation that they have no extraterritorial effect. They can apply in the nature of things only to property within the jurisdiction of the sovereign State enacting the legislation, either actually through physical location or constructively through control over the person of one essentially connected therewith. The test stated in Clark v. Treasurer & Receiver General, 218 Mass. 292, and that decision do not control the case at bar. In the instant case the property was actually in the State of Maryland. Its title was vested in the trustee resident there. Both its physical and constructive situs is in the State of Maryland. Massachusetts has no control either of the property or its owner. An excise tax may be upheld upon the succession to property where a direct property tax might not be sustained. But in such cases it can stand as a lawful exercise of the taxing power only when some necessary incident of the transfer of title depends for its efficacy upon the law of the State levying the tax. Under our own Constitution the "commodity" which may be taxed in the absence of corporeal jurisdiction over the property itself is the privilege of passing title under the sanction and protection of our law. Attorney General v. Barney, 211 Mass. 134. Bliss v. Bliss, ante, 201. Keeney v. New York, 222 U. S. 525, 537. Wheeler v. New York, 233 U. S. 434. The antithesis of this proposition is that where the property is not physically within the jurisdiction of the taxing power and its complete succession may be accomplished without invoking any privilege or sanction conferred by its laws, then there is nothing to which taxation can attach. If the property in Maryland had belonged to Mrs. Barnard, it would have been subject to the tax. Frothingham v. Shaw, 175 Mass. 59. But it did not belong to her. She had no title to it. She simply had the power of disposition if she chose to exercise it. This power does not constitute it her property. Emmons v. Shaw, 171 Mass. 410. The power is a deputation of the donee to act for the donor in disposing of the donor's property. Personal property over which one has the power of appointment is not the property of the donee, but of the donor of the power. The property in the case at bar

Page 603

was not that of Mrs. Barnard, but of her first husband, who established the trust and created the power. Her own estate is ample to pay all debts, so there is no room for the application of Clapp v. Ingraham, 126 Mass. 200. If she has exercised the power, the instrument whereby that has been brought about takes effect not as a disposition of her own property but as an appointment of property of her first husband under the power conferred by his will. The appointees will take not as legatees of Mrs. Barnard but as grantees or donees of Mr. Boyd or the trustees who are his representatives. Heath v. Withington, 6 Cush. 497. Sewall v. Wilmer, 132 Mass. 131, 136. If she has failed to exercise the power conferred upon her, the devolution of the trust fund to her heirs takes place by virtue of the will of Mr. Boyd, which will be given efficacy by the law of Maryland, the State of his domicil. In either event, the situs of the property does not attach to the domicil of the donee of the power.

It was established in Sewall v. Wilmer that property in the hands of domestic trustees appointed under the will of a domestic testator, who conferred a power of appointment upon a non-resident, must be distributed according to the law of this Commonwealth and that the execution of the power must be interpreted according to our law and in conformity to the power conferred. It has been held in numerous cases that a power to appoint by will may be exercised by an instrument valid as a will in the jurisdiction where the power is established, although not valid as a will in the domicil of the donee. The principle is that whether the power has been exercised is to be determined by the law of the domicil of the donor of the power. Murphy v. Deichler, [1909] A. C. 446. Rhode Island Hospital Trust Co. v. Bunnell, 34 R. I. 394. Bingham's Appeal, 64 Penn. St. 345. Inferentially, if not expressly, this is established by Sewall v. Wilmer, 132 Mass. 131. It is the law of Maryland. Bearn v. Winans, 111 Md. 434. The will of Mr. Boyd in creating the power of appointment did not provide that the power must be exercised by a will executed according to the law of the domicil of the donee, to be proved and allowed in its courts. See Rackemann v. Taylor, 204 Mass. 394. A different question would be presented if that had been the case. Any instrument recognized by the courts of Maryland as an exercise of the power is sufficient. It is the settled law of

Page 604

Maryland that in a case like the present "the appointee takes title not under the will making the appointment, but directly from the donor of the power and 'in like manner as if the power and the instrument executing it had been incorporated in one instrument.'" Beam v. Winans, 111 Md. 434, 470.

It follows that no privilege by which the property passes, whether by exercise of the power or by failure to exercise it, is conferred by the law of this Commonwealth. Hence no commodity exists here on which the tax can be levied. By resort to the courts of Maryland all questions as to the succession of this trust estate will be determined without invoking the law of Massachusetts. That will be settled without dependence upon the moral support or actual assistance of our laws. Bliss v. Bliss, ante, 201. The circumstance that the will has been set up in this Commonwealth is not of controlling significance. There is nothing in this Commonwealth upon which St. 1909, c. 527, § 8, can operate. Decree of the Probate Court affirmed.

P. Ketchum, (E. M. Dodd with him,) for the petitioner.

W. H. Hitchcock, Assistant Attorney General, for the respondent.