The opinion
Lott, S.
The tax sought to be recovered in this matter is upon property within this state, passing by will, and, therefore> is within the terms of the act, chapter 483, Laws of 1885.
While the grammer of section 1 of that act is questionable, yet I think the meaning of the law is not doubtful. If it was, then in view of the policy of encouraging the migration of foreign capital into this state (Williams v. The Board of Supervisors, 78 N. Y., 565 ), and because taxation may be imposed here and in Pennsylvania upon the same property, the acts in question might, by construction, be limited to embrace only the property of residents of this state passing by will or the intestate laws of this state, but where acts of this character have been restricted by construction the courts have proceeded upon the ground that the legislature had not sufficiently expressed its intention to depart from theretofore well settled rules as to taxation. Thompson v. The Advocate General, 12 Clark & Fennelly, 1; Wallace v. The Attorney General, 1 L. R., Ch. App. 1 U. S. v. Hunnewell, 13 Fed. Rep., 617.
I think it was intended to subject to taxation all property within this state passing by will (to other than certain excepted person) without regard to the residence of the ancestor, ana the provisions of sections 11 and 15 of the act in question support this construction.
It is conceded for the executors that property passing by grant, to take effect at the grantor’s death, is subject to the tax without reference to the residence of the grantor, and that the tax on property so transferred was designed to *782 prevent an evasion of the tax by resort to such conveyances. It would follow if the construction contended for by the executors was allowed, property of a non-resident passing by will would be free of 'tax, while property passing by grant from a non-resident to take effect in possession at the death of the grantor would be liable to taxation.
I am of the opinion that both real and personal property within this state passing by the will of the testatrix are subject to the tax. _