Argument for Appellant. 280 U.S. donor's estate was had in Virginia, where the two sons, still in their minority, also were domiciled. The courts of Virginia sustained a Virginia tax upon the whole corpus of the trust estate by regarding the sons, in conjunction with the administrator, as the real owners of it. Held that the tax was on property beyond the jurisdiction of the State and invalid under the Fourteenth Amendment. 151 Va. 883, reversed. APPEAL from a judgment of the Special Court of Appeals of Virginia which affirmed a judgment denying relief to the Trust Company from assessments of taxes. Mr. Littleton M. Wickham, with whom Messrs. J. Jordan Leake, A. S. Buford, Jr., Wm. P. Constable, and Joseph M. Hurt, Jr., were on the brief, for appellant. The statute is unconstitutional unless the cestuis and the estate own the entire corpus. We take it to be undisputed by counsel for the Commonwealth that no greater tax would have been imposed had an identical set of securities been held in absolute estate by a resident of Richmond, Virginia, in his safe-deposit box in a Richmond bank. It surely cannot be contended that the mere accident of appellant's appearance before a Virginia tribunal can justify the taxation of the corpus of a fund held in Maryland, when appellant neither resides in Virginia nor is acting in any fiduciary capacity under the supervision of a Virginia court. Dewey v. Des Moines, 173 U. S. 193. A State has power to tax intangibles held without its borders to the extent only of such interest therein as may belong to a resident of the State. Brooke v. Norfolk, 277 U. S. 27. The inquiry here, then, is what interest in the fund assessed is owned by residents of Virginia? Obviously, the owners of the largest share are appellant's cestuis, but, though their interest may be technically a fee de 83 Argument for Appellant. feasible, it is certainly not the entirety. Saltonstall v. Saltonstall, 276 U. S. 260. Assume the disabilities of nonage removed, so that the cestuis-Could validly bind themselves to part with their interest, could they, or either of them, obtain for it the value actually taxed? Obviously not, because any purchaser would estimate the probability of a defeasance and reduce accordingly the amount he would be willing to pay. In other words, neither cestui can sell the remainder, or whatever estate depends upon his death before 25, since such estate is owned by others, amongst whom are his brother and his own issue (now unborn). We do not now contend that the State of Virginia could not constitutionally tax whatever may be the value of the cestui's interest. This, however, she has not seen fit to do (as she has not, indeed, provided any machinery for ascertaining such value); but, on the contrary, she has taxed the entirety. Still another interest is owned by the Kellam estate, as representing such persons as may take in event both cestuis die without issue and under twenty-five. The contingency is not provided for in the trust, and the record is, of course, silent as to the place of residence of these persons, if they exist or are identifiable. Whoever they are, or wherever they may be, it is clear that their interest is a mere reversion, if we may speak by analogy with the law of real property, and, as such, is far from entire. The Kellam estate as standing in the place of the grantor, can claim no ownership. Bullen v. Wisconsin, 240 U. S. 625. No resident ownership, therefore, can be predicated upon the fact that administration took place in Virginia. The interests belonging to both cestuis when added to those belonging to the estate, fall short of totality by the extent of the interest belonging to the cestuis' issue, whom, as already stated, we may with complete confi Argument for Appellant. 280 U.S. dence assume to have been yet in futuro at the time of the institution of these proceedings, as the two boys were then, respectively 141⁄2 and 11 years old. The contingent interests just discussed would seem to have no situs apart from the securities themselves, and the securities are in Maryland, not Virginia. In other words, so far as concerns these contingent interests, there is no "person for the movables to follow." Any theory that would support a tax in this case on the ground that the property was once in Virginia must, we conceive, be based on a fundamental misconception of state power and jurisdiction. State Tax on Foreign Held Bonds, 15 Wall. 300; Frick v. Pennsylvania, 268 U. S. 473. Can a tax upon it be why it is where it is? Now, "jurisdiction" and "power to impose" a tax are questions, not of motive, but of fact. Their existence does not depend on the intentions of the person whose object it may be to escape them. Either the property is within the jurisdiction or it is not. justified by a retrospective view of Surely not. If M, a resident of Virginia, believing his taxes too burdensome and desiring to escape them, removes himself and all his property to another State, could this Commonwealth (assuming she in some way obtained a temporary jurisdiction of his person) impose a tax on his property? Surely not. Yet any theory involving origin as a criterion would justify a tax in that case. Cf. Buck v. Beach, 206 U. S. 392. Appellant's cestuis are not, from the constitutional standpoint, the owners of the fund in any sense of this term. Ownership is not a technical conception but one that should be viewed realistically and as meaning possession or control, or the immediate right to either. Bullen v. Wisconsin, 240 U. S. 625; Wachovia v. Doughton, 272 U. S. 567; Brooke v. Norfolk, 277 U. S. 27; Attorney General v. Power, [1906] 2 I. R. 272, K. B. D. 83 Argument for Appellee. The ownership pertaining to appellant's cestuis in their own right will not support the constitutionality of the statute. Mr. Henry R. Miller, Jr., with whom Mr. W. W. Martin was on the brief, for appellee. The proper party appellant is "The Safe Deposit and Trust Company of Baltimore, Maryland, Trustee for L. J. and E. P. Kellam," and not that company in its individual capacity. Under the doctrine of mobilia sequuntur personam, approved in Blodgett v. Silberman, 277 U. S. 1, Virginia may tax intangible property such as is here involved to its residents, even though the physical evidences thereof be located outside the jurisdiction of Virginia. Fidelity & Columbia Trust Co. v. Louisville, 245 U. S. 54; and even though the legal title thereto be in a non-resident. The question at issue here is, did the sons own SO much of the trust fund as amounted in value to the value of the entire fund? If they did, the assessment is valid. The two sons took vested absolute estates in the personal property, with their enjoyment thereof postponed, such vested estates being subject to be divested upon the happening of either of the conditions subsequent. Cropley v. Cooper, 19 Wall. 167; Carter v. Keesling, 130 Va. 655. There can be no question of the right of Virginia. to tax such vested estates, and such other estates as the two sons have in the property. It is argued, however, that the aggregate value of the sons' interest is less than the value of the fund, the difference being represented by (a) the interests of the unborn issue and (b) the interests of whatever persons take in the event of the death of both sons under twentyfive and without issue. Argument for Appellee. 280 U.S. The interests of the unborn issue of the sons are of no value. Howbert v. Cauthorn, 100 Va. 649; Young v. Young, 89 Va. 675. It is true that by statute in Virginia now, such an interest as was involved in either of those two cases may be disposed of by deed and, even in the absence of statute, a deed of such interest might operate as an estoppel. But the "naked possibility" is not thereby given any value. In the Howbert and Young cases some of the remaindermen were in esse. Here the remaindermen are yet unborn. The interests of the unborn issue are thus dependent upon a double contingency-birth of issue, death of the issue's father under twenty-five-and are thereby reduced from a "naked possibility" to a "strong improbability." Then too, the assessment of a property tax is made upon the basis of the value of the property at a definite day in the past, not upon the value of the property in the future. On the dates when these assessments were made, the two sons were the owners of the absolute estate in the personalty. They were both alive without issue and there was, therefore, no derogatory estate in any one else. The possibility of death of both sons under twenty-five, without issue, does not defeat the assessment. Should such event happen, the property would descend to the heirs of the one dying second, or pass under his will to his legatees. As to this contingency, the deed of trust is silent, and there can be no estate in other persons by way of limitation upon such event, save by implication, and such limitations are not favored and the courts will incline against their creation either by devise or by deed, when the words employed are not clear and definite. Brewster v. McCall, 15 Conn. 274. In the absence of all reference to such an event, and when it was the intent of the grantor in the deed to give to the beneficiaries an absolute estate, it should be held that the happening of the con |