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It is next contended on the part of the plaintiff in error that, if a valid cause of action were alleged in the declaration, the evidence of the plaintiff below did not support it; but, on the contrary, was at variance therewith. He also contended that, so far as the proof went, it placed Moore, the original defendant, in the position of promising orally to pay the debt of another. To these contentions the defendant in error urg. ed that, under the declaration and proofs, a primary undertaking to pay the debt was established. It could hardly be said by one who had considered the evidence with care that there was any proof of an express undertaking by Moore to become primarily liable upon the note to his immediate indorsee; and therefore Schley, Ex'x, v. Merritt (1872) 37 Md. 352, 353, 360, is not pertinent. The defendant in error thinks, however, that the evidence was enough to warrant, inferentially, a finding of primary liability, because it was shown that Moore had taken into his hands the property of the maker of the note, and had thereupon agreed to take care of this note with other obligations of the maker. The proof was not of a conveyance of the lands of the maker of the note to Moore alone, but to four men who were named and of whom the original defendant was one. It becomes proper, therefore, to inquire whether such proof sustained the declaration and opening, or was at variance therewith.
(a) Variance, or discrepancy, between a material averment in pleading and the evidence adduced in support of it, was in early times of vital importance. 1 Chit. on Plead. (3d Lond. Ed.) *303–*308; Bristown v. Wright (1781) 2 Dougl. K. B. *665, *667a ; Mulford v. Bowne (1827) 9 N. J. Law, *315, *318. Since the enactment of the provisions now embodied in Practice Act, Revision of 1903 (P. L. p. 571) § 125 (Mott, P. A. p. 64), variance has with us been of less consequence. Nevertheless to-day it is sound law and sound reason that there must be no variance to the prejudice of the adverse party between the case declared upon and the case proven, and that recovery must be secundum allegata et probata. Hallock V. Commercial Ins. Co. (1857) 26 N. J. Law, 268, 274; Bristow v. Wright, supra; Martinez v. Runkle (1894) 57 N. J. Law, 111, 117, 122, 30 Atl. 593. Applying the doctrine to the facts in evidence, we think that there was a substantial variance between the case declared upon and the case proven, inasmuch as no defendant would anticipate that an alleged absolute and primary undertaking by A. to pay money to Z. would be supported or be thought to be supported by proof of an undertaking by A., B., C., and D. to pay the same money, in consideration of the transfer of property to them by Y.
(b) If we should assume, without deciding, that under the principle of Joslin v. N. J. Car Spring Co. (1873) 36 N. J. Law,
the original defendant with J. Myers, C. R. Myers, and R. Moore upon their contract with the land company to assume and pay the obligations of the company, we could not deem it lawful to permit the proof of such contract to sustain the present declaration unamended. Under Practice Act (P. L. 1903, p. 545) § 38 (Mott, P. A. p. 16), the nonjoinder of a defendant in an action ex contractu can be taken advantage of only by a plea in abatement. Gray v. Sharp (1898) 62 N. J. Law, 102, 103, 40 Atl. 771. Had the original defendant been sued upon the contract of assumption which had been made by himself and three associates, he would at once have perceived the necessity of pleading the nonjoinder ; but, when he was sued upon a contract alleged to be founded upon a particular note and to have been entered into by himself alone, no necessity of such a plea could have been apparent. Hence, were the present recovery to stand, the result would be that he would be held, to his injury, to be bound alone by a contract first indicated by the proofs, and would be denied all opportunity of pleading the nonjoinder. See Lieberman v. Brothers (1893) 55 N. J. Law, 379, 380, 26 Atl. 828. On other hand, it would not be consistent with justice now to amend the declaration so as to make it conform to the proofs. To use the language of Mr. Justice Dixon in Excelsior Electric Co. V. Sweet (1896) 59 N. J. Law, 441, 443, 31 Atl. 721, so to do would be “to support a verdict which may have been rendered upon a matter which the parties have not fairly litigated.” Such cases as Price v. N. J. R. & T. Co. (1865) 31 N. J. Law, 229, 231-234, and Redstrake v. Cumb. Ins. Co. (1882) 44 N. J. Law, 294, 296, would not justify an amendment. The original defendant and his executor, as substituted defendant, never expected or intended to try an issue upon the contract of assumption of the land company's obligations. Indeed, the substituted defendant stoutly resisted the attempt so to do, throughout the trial. Usually, when a substantial variance appears in the course of the trial, the plaintiff should be nonsuited. Such was the older practice. 1 Ch. Plead. (3d Lond. Ed.) *303; Bristow y. Wright (1781) 2 Dougl. *665, *669. Such seems to be our modern usage in cases of variance or failure of proof. Case v. Cent. R. R. Co. (1896) 59 N. J. Law, 471, 472, 37 Atl. 65, 59 Am. St. Rep. 617; Folsom v. Squire (1905) 72 N. J. Law, 430, 60 Atl. 1102. In the case in hand no motion for a nonsuit was made at the close of the plaintiff's case; and when, on the same evidence, the defendant moved for the direction of a verdict, no exception was sealed upon the denial of the motion. Nevertheless, as inadmissible evidence was received against the objections of the defendant properly taken, and error is assigned thereon, we think the defendant should be reliev
was based at least in part on evidence not ciple invoked. It would seem manifestly unadmissible under the pleadings.
just because of waiver or excuse based upon It is further contended by the plaintiff in the holding of property to enforce against error that irrelevant evidence was admitted Moore or his executor alone a liability for a to his injury, and that, so far as the evidence whole debt, if or while the property, out of established any contract, it was one made by which the debt was intended to be met, is four jointly, and not by Moore, alone. It would in title or possession vested largely in others. seem that such arguments have already been (b) The case of the defendant in error is sufficiently considered were it not that the de- not bettered if reliance be placed upon the fendant in error (plaintiff below) answers that, acknowledgments or admissions of Moore bean absolute and primary undertaking aside, tween the maturing of the note and his de the proofs, under the declaration, establish the cease. His admissions, be it remarked, were liability of Moore as an indorser, who, having not of any sole responsibility, but of a retaken the property of the maker of the note sponsibility shared by three associates, who into his own hands, waived presentment and should be consulted and who should act or notice. The defendant in error was driven be bound together with himself. The law to take this position by the exigencies of his applicable to such conduct is that acts, adcase. By the admission of his counsel on the missions, or promises after maturity, in oropening and by the absence of affirmative der to be evidential of a waiver of presentevidence, it appeared at the trial (as coun- ment and notice, or of an excuse for the sel put it) that “the note was never pro. want of presentment and notice, must be tested." It is then proper to consider the done or made with full knowledge of the evidence afresh from this view point.
discharge from liability upon the contract of (a) As we first review the law invoked, indorsement, and must, in form and effect, be it is manifest that the argument of the de- unequivocal and unconditional. Barkalow fendant in error rests upon the doctrine that V. Johnson (1838) 16 N. J. Law, 397, 398, 400; when an indorser has received full security Sussex Bank V. Baldwin (1840) 17 N. J. or indemnity for the amount of a note or bill, Law, 487, 495, 496; Harrison v. Bailey (1868) or has received money or property for the 99 Mass, 620, 621, 97 Am. Dec. 63; Thornton very purpose of taking up such note or bill v. Wynn (1827) 25 U. S. 183, 187, 189, 6 L. at maturity, the holder of the paper is ex- Ed. 595; Sigerson v. Mathews (1857) 61 U. cused from the duty of presenting it for pay- S. 496, 499, 500, 15 L. Ed. 989; Woods v. ment, and of giving notice to such indorser Dean (1862) 32 L. J. K. B. 1, 3, a case better of the dishonor. Story on Prom. Notes, 88 reported here than in 3 Best & Smith. 281, 282, 357; Story on Bills (4th Ed.) $8 316, (c) In passing it may be observed that, 374; Chitty on Bills (9th Lond. Ed.) *440, under the facts brought out, no excuse for *449, *506, notes. This principle, thus broad- the lack of notice of dishonor could be jusly stated, although approved by some eminent tified by the provisions of Negotiable Inauthors, such as Story and Kent, and having struments Act 1902 (P. L. p. 602) § 115. The with us the countenance of a dictum in Per- evidence discussed was, in any spect sugry v. Green (1842) 19 N. J. Law, 61, 63, 38 gested, inadmissible or irrelevant to show a Am. Dec. 536, is doubted or denied by other waiver or excuse as to presentment or notice; writers (see 2 Dan. on Neg. Inst. [5th Ed.] and its reception was therefore injurious to 88 1129-1134); and it is not now necessary the plaintiff in error. The conclusions thus for this court either to indorse or condemn far reached make it unnecessary for us to it. It will be observed that the stronger expend labor upon a question barely touched cases which apply the principle base the ex- upon at the hearing-whether the plaintiff cuse upon the facts that the indorser him
below showed any title to the note in suit. self has received enough or all (if not enough) It appeared in part by the evidence, and in of the maker's property for the purpose of part by the admission of counsel at the bar securing the former against his liability, or of this court, that the attorney of the plainfor the purpose of meeting the obligations tiff below wrote the name of the La Charge which he has incurred on behalf of the lat- Dredging Company on the back of the note ter. Corney v. Da Costa (1795) 1 Esp. N. P. just before action brought. There being no 302, 303, approved, arguendo, in Brown V. proof whatever of the authority of such at. Maffey (1812) 15 East, 216, 222; Bond 5
torney, our silence must not be deemed an Farnham (1809) 5 Mass. 170, 171, 173, 4 A.. approval of any seeming title acquired by Dec. 47; Barton v. Baker (1815) 1 Serg. & R. his act. Quære, whether the circumstances (Pa.) 334, 336, 7 Am. Dec. 620; Mechanics' might not repel the favorable presumptions Bank v. Griswold (1831) 7 Wend. (N. Y.) 165, which in a proper case exist under Nego166, 167, 170. As we turn to the facts tiable Instruments Act (P. L. p. 587) § 16. bronght out in the case in hand, we recall The last contention of the laintiff in erthat Moore, as indorser, did not alone receive ror is that there was error in directing a the property of the maker of the note in suit. verdict for the plaintiff below when he restThe taking over of the property was by four, ed; no evidence being offered by the defendand not by one, and therefore there is lack- ant below. On the principal points urged ing a fact or circumstance deemed by many by the defendant in error, to wit, that his
undertaking by the testator of the plaintiff tions, is not equivalent to stating no cause of in error, or, such testator being secondarily
action whatever. liable, established an excuse for the want of
[Ed. Note.--For other cases, see Judgment,
Cent. Dig. § 943; Dec. Dig. $ 503.*] presentment and notice, we have already held against him. On the first point we held
4. MANDAMUS ($ 180*)-PROCEEDINGS — PER
EMPTORY WRIT-ISSUANCE. that through a substantial variance between
Where both parties have been heard on a allegation and proof he proved, if anything, rule to show cause for mandamus, and there à cause of action different from that laid in are no disputable facts, a peremptory writ may
issue in the first instance. his declaration, and on the second point we
(Ed. Note.-For other cases, see Mandamus, . held that he failed to prove facts essential
Cent. Dig. § 405; Dec. Dig. § 180.*] to the excuse under the very principles which
5. TIME OF SERVICE OF SUMMONS. he invoked. In such a situation the de
Quære: Whether the statute of 1846 (Gen. fendant in error might lawfully have been St. 1895, p. 410, § 3), requiring that the service nonsuited at the trial had such a motion of a summons issued against a board of chosen been made. Case v. Central R. R. Co. (1896)
freeholders shall be made “at least thirty days
before the session of the court to which such 59 N. J. Law, 471, 472, 37 Atl. 65, 59 Am. St.
process is returnable," was not impliedly repealRep. 617. See Neutze v. Atl. City R. R. Co. ed by section 52, Practice Act, Revision 1903 (1904) 71 N. J. Law, 407, 408, 59 Atl. 1083; (P. L. p. 549). U. S. Fidel, & Guar. Co. v. Donnelly (1902) 6. SERVICE OF DECLARATION WITH SUMMONS. 68 N. J. Law, 654, 655, 54 Atl. 457; Folsom
Quære: Whether section 95, Practice Act,
Revision 1903 (P. L. p. 564), providing for the V. Squire (1905) 72 N. J. Law, 430, 431, 60
service of a declaration with the summons, inAtl. 1102. Plainly, if the defendant in error cludes municipal corporations defendant. might have been nonsuited below, the direc- (Syllabus by the Court.) tion of a verdict in his favor upon the same
Rule to show cause by Nicholas F. Palmer, evidence is erroneous, and cannot be upheld.
Jr., surviving executor of William Bromley, The citation of cases to support this proposition is needless. If, as his adversary sug
deceased, requiring the Board of Chosen Free
holders of the County of Essex and others gests, we should look at the matter most fa.
to show cause why a peremptory or altervorably to the defendant in error, the result must be the same.
native writ of mandamus should not issue. The rule is that, when
Rule made absolute. any material facts are in dispnte, even though the evidence be open to debate and On rule to show cause why a writ of manleaves the mind in some doubt, a verdict damus should not issue. The facts establishshould not be directed, but the question is ed by the proofs taken under this rule are: for the jury. D., L. & W. R. R. Co. v. Shel- That the relator on November 19, 1907, inton (1893) 55 N. J. Law, 342, 345, 26 Atl. stituted an action in the Essex county circuit 937; Baumann V. Hamb.-Amer. Pack Co. court against the board of chosen freeholders (1901) 67 N. J. Law, 250, 252, 253, 51 Atl. of the county of Essex, by the issue of a 461.
summons on that day returnable December 6, Let the judgment of the Supreme Court 1907. Declaration was attached to and serybe reversed and a venire de novo awarded, ed with the summons November 20, 1907. to the end that there may be a new trial, On December 10, 1907, judgment by default the defendant in error be so advised.
for want of a plea was duly entered, and execution has been issued thereon, and returned
unsatisfied by the sheriff. A written demand (77 N. J. L. 143)
for payment was served upon the county colPALMER V. BOARD OF CHOSEN FREE- lector, together with a copy of the execution.
HOLDERS OF ESSEX COUNTY et al. A like written demand was also made upon (Supreme Court of New Jersey. Dec. 4, 1908.)
the finance committee of the board and upon
the board of freeholders at their annual meet1. JUDGMENT (8 472*)–COLLATERAL ATTACK. Where a court of general jurisdiction has
ing, but the board has failed to make provijurisdiction of the subject-matter, and has ac- sion for the payment of the judgment. The quired jurisdiction over the person of the de- subject of the action was the recovery of fendant, its judgment is invincible against collateral attack.
money paid by the plaintiff's testator to the (Ed. Note.-For other cases, see Judgment,
Essex public road board, whose successor Cent. Dig. $ 908; Dec. Dig. § 472.*]
the defendant is, as the amount of an assess2. JUDGMENT (8 501*)-COLLATERAL ATTACK
ment, afterwards set aside as illegal by this IRREGULARITIES.
court. The declaration alleges that the as. Upon collateral attack, mere irregularities sessment was made April 2, 1891, and paid in proceedings in a court of general jurisdiction are cu red by judgment.
December 10, 1884, and was set aside Novem(Ed. Note. For other cases, see Judgment,
ber 27, 1889. After entry of the judgment Cent. Dig. 88 941-950; Dec. Dig. $ 501.*]
application was made to the circuit court to 3. JUDGMENT (8 503*)—COLLATERAL ATTACK
open it, because improvidently entered, and INSUFFICIENCY or CAUSE OF ACTION.
because the defendant has a legal defense in A declaration, on its face exhibiting a
the statute of limitations which application cause of action barred by the statute of limita- was refused. Thereupon this rule was ob
tained, requiring the said board of freehold. served with the summons. If the provisions ers and the individual members thereof to of section 95, Practice Act, Revision 1903, inshow cause why a peremptory or alternative clude municipal corporations defendant, this writ of mandamus should not issue com- objection has no foundation. Dock v. Elizamanding them to add to the amount to be bethtown Mfg. Co., 34 N. J. Law, 312, and raised by taxation for current expenses, etc., Cooper v. Cape May Point, 67 N. J. Law, 441, for the coming year, an amount sufficient to 51 Atl. 511, are cases which point to this conpay the execution, and commanding them to struction. Nor can it be successfully urged order the county auditor and collector to pay that, because the declaration on its face exto the petitioner the amount of the execution hibits a cause of action barred by the statout of any funds in their hands belonging to ute of limitations, it is equivalent to stating the board of freeholders.
no cause of action whatever. Such is the Argued November term, 1908, before GAR- contention of the defendants. The statute RISON, PARKER, and VOORHEES, JJ. does not obliterate the cause of action. This
Edward Oakes, for relator. Elvin W. defense may be waived. To be availed of it Crane, for defendants.
must be pleaded. Christie v. Bridgman, 51
N. J. Eq. 331, 25 Atl. 393, 30 Atl. 429; Peer v. VOORHEES, J. (after stating the facts as Cockrow, 13 N. J. Eq. 136; Inbabitants of above). The issuance of the writ asked for West Hoboken v. Syms, 49 N. J. Law, 546, 9 is resisted upon several grounds, each of Atl. 780. These are matters that should which is an attack upon the judgment. It be addressed to the court in which the judgis well settled that, where a court of general ment was entered, and that were correctly jurisdiction has jurisdiction of the subject- decided by it in refusing to open the judg. matter, and has acquired jurisdiction over ment, and while we have considered them, the person of the defendant, its judgment is they cannot be availed of as a means of colinvincible against collateral attack. It is lateral attack upon the recovery. only where there is lack of jurisdiction in The rule to show cause will be made abone or both of the above particulars that the solute with costs, and a mandamus will be judgment is void, and may be so treated in a issued (Lyon v. Elizabeth, 43 N. J. Law, collateral proceeding. Westcott v. Garrison, 158; Londrigan v. McNally, 65 N. J. Law, 163, 6 N. J. Law, 132; Van Dyke v. Bastedo, 15 46 Atl. 597), peremptory in form, both parties N. J. Law, 224; Godfrey v. Myers, 23 N. J. having been heard on this rule, and there Law, 197; Hess v. Cole, 23 N. J. Law, 116; | being no disputable facts. State ex rel. Y. National Docks Co. v. P. R. R., 52 N. J. Eq. Paterson, 35 N. J. Law, 196. 58, 28 Atl. 71; Podesta v. Binns, 69 N. J. Eq. 387, 60 Atl. 815. Jurisdiction will be presum
(76 N. J. L. 655) ed in cases of domestic judgments of courts
NEILSON et al. v. RUSSELL, Surrogate, et al. of general jurisdiction. Miller v. Dungan, 35
(Court of Errors and Appeals of New Jersey. N. J. Law, 389. The defendant insists that
Nov. 16, 1908.) the record discloses upon its face that the
TAXATION (8 867*)-INHERITANCE TAX-PROPjudgment was improvidently and premature.
ERTY SUBJECT. ly entered, and hence is void. The reasoning Stock in a New Jersey corporation be of the defendant on this subject is that the longing to a testator domiciled in England is statute of 1846 (Gen. St. p. 410, § 3) requires
not subject to the inheritance tax imposed by
the act of May 15, 1894 (P. L. p. 318) ; 3 Gen. the service of a summons issued against a
St. 1895, p. 3339. board of chosen freeholders to be made "at (Ed. Note.---For other cases, see Taxation, least thirty days before the session of the Cent. Dig. § 1682; Dec. Dig. § 867.*] court to which such process is returnable,” Pitney, Ch., and Bergen and Green, JJ., dis. and as such service was not made in this senting. case, the judgment is a nullity. There would (Syllabus by the Court.) be no merit in this contention if the above statute was impliedly repealed by section 52,
Error to Supreme Court. Practice Act, Revision 1903 (P. L. p. 549).
Action by Alfred Neilson and others, ex. Roche v. Jersey City, 40 N. J. Law, 257. But
ecutors, against George E. Russell, surrogate, assuming the premature entry of the judg
and others. Judgment for defendants, and ment, that fact does not render it void. It
plaintiffs bring error. Reversed. will stand until reversed or set aside. Hoey
See, also, 69 Atl. 476. v. Aspel & Co., 62 N. J. Law, 200, 40 Atl. 776. Frank R. Lawrence, Joseph Coult, and Irregularities in proceedings in a court of John W. Griggs (William A. Smith and Frank general jurisdiction, as against collateral at- Lawrence, on the brief), for plaintiffs in ertack, are cured by judgment (Apel v. Kelsey, ror. Theodore Backes and Robert H. Mc52 Ark. 341, 12 S. W. 703, 20 Am. St. Rep. Carter, Atty. Gen., for defendants in error. 183; Fischer v. Holmes, 123 Ind. 525, 24 N. E. 377) which is fatal to the objection that, SWAYZE, J. In a case like this the tempin actions against boards of freeholders, the tation is strong to pass an opinion upon the statute does not permit a declaration to be fundamental and important questions which
were exhaustively discussed at the bar, and in the able opinion of the Supreme Court. We prefer, however, to confine our discussion to the exact point presented by the case, which we think is the much narrower one of the proper interpretation of the statute. For that purpose we assume that shares of stock in a New Jersey corporation have a situs in this state, and that succession thereto or transfer thereof may be taxed by our Legislature, and that the tax imposed by the act of May 15, 1894 (P. L. p. 318) is either a legacy or a succession tax and not a property tax, and therefore not in conflict with our constitutional provision. The question we have to decide is then simply whether the statute reaches the present case.
An examination of the act shows that it imposes a tax (1) upon all property which passes by will or the intestate laws of this state from any person who may die seised or possessed of the same while being a resident of the state; (2) upon all property which shall be within this state which shall be transferred by inheritance, distribution, bequest, devise, deed, grant, sale, or gift made or intended to take effect in possession or enjoyment after the death of the intestate, testator, grantor, or bargainor. The first class obviously affects the succession of residents of this state only. If the present tax is to be sustained, it must be because the succession sought to be taxed comes within the second class.
Our act was modeled after the New York act of 1885 (Laws 1885, p. 820, c. 483, & 1); and, if we had made no change in that act, we should be held upon well-settled princi. ples to have adopted with the act the construction previously placed thereon by the New York courts in the case of Enston's Will, In re, 113 N. Y. 174, 21 N. E. 87, 3 L. R. A. 464. In fact, however, we modified the language of the New York act by inserting at the beginning of the clause the words "all property” in place of the mere relative "which” and by adding the words "inheritance, distribution, bequest, devise." We are not therefore concluded by that decision.
It is clear that the Legislature did not intend to tax all successions of nonresidents. If it had meant that, it would have taxed all property within this state which should be transferred from a decedent by will or intestacy. (We disregard as quite inapplicable to the present case transfers by deed, grant, sale, or gift intended to take effect after death.) Instead of using this general language which was naturally suggested by the use of the words "by will or by the intestate laws of this state," employed in the previous clause, the act limits the taxation upon transfers of the property of nonresidents to transfers by inheritance, distribution, bequest, or devise. The words "inheritance" and "distribution” are apt and proper words to designate the succession of an heir or
vise," that of a legatee or devisee. The only one applicable to the present case is "bequest.” What is to be taxed, therefore, as far as the present case is concerned, is a transfer by bequest from Mills to his legatees, or, to use the language of Mr. Justice Holmes in Blackstone V. Miller, 188 U. S. 189, 207, 23 Sup. Ct. 277, 47 L. Ed. 439, it is the singular succession of the legatee, not the universal succession of the executors. That this is the true construction of the act is indicated further by the provisions of section 6 (Gen. St. 1895, p. 3341, par. 268) authorizing the executors to deduct the tax from the legacy or property for distribution. The tax is not a general charge against the estate, but a charge upon the legacies. Wyckoff v. O'Neil (N. J. Err. & App.) 67 Atl. 32. Section 10 authorizes a refund of taxes where the legatee has been obliged to refund part of this legacy to pay debts proven after distribution. Although there seems to be no provision in the statute authorizing the deduction of debts in making the appraisement we can hardly doubt in the face of section 10 that such a deduction ought to be made. It has never been thought that an insolvent estate was liable to this tax, although no machinery can be provided in this state by which the fact of solvency or insolvency can be ascertained. Such machinery is unnecessary if it is only the value of the legacy that is to be ascertained. These considerations persuade us that it is the legacy that is taxed, and not the estate. The question recurs whether the succession of the legatees in the present case was meant to be taxed.
This succession is a succession under Eng. lish law by which the validity and amouut of the bequest must be determined. Jenkins v. Guarantee Trust & Safe Deposit Co., 53 N. J. Eq. 194, 32 Atl. 208. By that law, as well as by our own, the title to a legacy is not complete and perfect until the executor has assented (2 Williams on Executors, 1372, 1373), and he ought not to assent until creditors are satisfied. This assent must of necessity be the assent of the executors at the domicile. They alone can ascertain whether the estate is solvent or insolvent, and it is only upon a settlement of their accounts that it can be determined whether the legatee will actually receive anything or not; and, if he is to receive only a portion of the legacy, the amount in which it shall abate can be decided by the courts of the domicile only. The succession to the legacy is complete only in a foreign jurisdiction, and it would certainly be anomalous to tax that succession here. The case differs from those arising under the New York act of 1892 (Laws 1892, p. 814, c. 399), and statutes modeled thereon, which assume to tax the transfer of property within the jurisdiction. Under those statutes it is the situs of the property which justifies the taxation of