Surrogate's Court, Westchester County, October, 1895. [Vol. 16. property of decedent within this state, for the purpose of taxation under chapter 399 of the Laws of 1892. Decedent died in January, 1895, a resident of West Chester, in the state of Pennsylvania, in which state her will was proved and principal administration had. Her husband, Rushton D. Burr, died in Germany, in May, 1893, but was at the time of his death a resident of the state of Massachusetts. By his will he gave his property to his wife. Among his assets were certain funds deposited in savings banks located in the cities of New York and Yonkers. After his death, and in the year 1894, Mrs. Burr transferred such bank accounts to her individual name. It does not appear by the evidence that she used these accounts by depositing and drawing money, but counsel for respondent upon the argument conceded that she did. These accounts at the time of her death aggregated $8,584.73. Decedent also had in the hands of Duncan Smith, her legal adviser, who resides in this county, the sum of $2,500, and had also a bond for $10,000 secured by a mortgage upon real estate in the city of New York. The appraiser finds that the decedent made and retained the savings bank deposits "merely for her temporary convenience and with the intention of withdrawing the same therefrom as soon as she could find a satisfactory investment therefor. That in making such deposits she never intended to invest the said moneys within this state." But there is nothing in the record before me that justifies or sustains such a finding or conclusion. The fact that her legal adviser resided in this state, as well as both of her executors, and the fact that she had already made investments in this state, would lead to the opposite conclusion. The appraiser finds that only the bond for $10,000, secured by a mortgage upon New York city real estate, is taxable in this state, while the county treasurer claims that the savings bank deposits and the money in the attorney's hands is also taxable. I cannot see upon what principle the bond and mortgage is taxable, and not the savings bank deposits and the money in the hands of the attorney. I should be inclined to the opinion that the property being intangible its situs was that of the domicile of the owner, were it not for the decision of the Court of Appeals in In re Romaine, 127 N. Y. 80, in which case it was held that deposits in savings banks of this state, made by nonresidents, were taxable here. Counsel for respondent undertook to distinguish the Romaine case from the one at bar, upon the ground that it appeared Misc.] Surrogate's Court, Westchester County, October, 1895. in the Romaine case the securities were "habitually kept" within the state, and that in the case at bar the funds were left on deposit in this state temporarily only, awaiting investment. The principle upon which such property is taxable is that it is under the protection of our laws, and should on that account pay a share of the expenses of the government. The money in the savings banks was there drawing interest, and protected by the laws of the state; among others, that creating a banking department, which department is carried on at great expense to the state, and was enacted for the particular protection of depositors. It is only in cases of property actually or constructively in transit from one state to another through this state that an exception is made and the property is not considered to be within the state. This case is one of some hardship, for the reason that the whole estate of the decedent is taxable in Pennsylvania (Laws of Peuusylvania, 1887, page, 79), and if the property referred to is taxable here, the right of succession to it will cost ten per cent. of its value. The Pennsylvania statute was evidently passed in view of the decisions in Orcutt's Appeal, 97 Pa. St. 179; 11 W. N. C. (Pa.) 492, which followed decisions in the United States Supreme Court, upholding in effect the legal fiction or maxim mobilia personam sequunter, but it was long ago decided in this state that such fiction was not of universal application, and does not apply to laws relating to taxation. Hoyt v. Commissioners of Taxes, 23 N. Y. 228. Judge Comstock, however, in the decision in that case, limited its application to personal property that was visible and tangible, but the logic of the decision in the Romaine case is that the maxim does not apply in any case where the securities representing the property or documentary evidence of property are within the state. It is unfortunate that the laws of the different states relating to succession taxes are not uniform and framed to prevent double taxation, and it is also unfortunate that a construction of the law should be given which makes it easy for the law to be evaded, as it could have been in this case; the foreign executors could have disposed of all the property within this state and have given good title by assignment thereto, although they would not have any standing in the courts of this state to sue for the same. But with misfortunes we have nothing to do; we must execute the Supreme Court, January, 1896. [Vol. 16. law as we find it and as it has been interpreted by the higher courts. The decree assessing the tax heretofore entered will be opened and modified to include all the property referred to in the ap praiser's report, with $10 costs to the appellant. Ordered accordingly. THE PEOPLE ex rel. EUGENE A. ANDRUS, V. THE BOARD OF AUDITORS OF THE TOWN OF CHAMPLAIN.* (Supreme Court, Saratoga Special Term, January, 1896.) 1. Towns - Claims for services in criminal cases. Claims of magistrates or officers against a town for services in criminal cases should state the place where the crime was committed. 2. Sheriffs - Fees for transporting convicts to state prison. Section 3 of chapter 497, Laws of 1847, in relation to compensation for transportation of convicts to state prisons and houses of refuge, applies only to convicts adjudged to be such by a court of record, and not to juvenile delinquents sentenced by a magistrate or justice of the peace. 3. Same-Deputy must be a resident of the county. An appointment by a sheriff of a person who does not reside in his county as a deputy is unauthorized and void. APPLICATION for a writ of mandamus requiring the board of auditors of the town of Champlain to reconvene and audit a claim presented by relator for making an arrest as deputy sheriff. Charles B. Andrus, for relator. Wilmer H. Dunn, for respondent. KELLOGG, J. This is an application for a writ of mandamus against the board of audit of the town of Champlain, requiring it to reconvene and audit the claim presented by the relator to the said board at its last meeting in 1895. Several questions are raised by this application. It is not disputed that it was the duty of the board of audit to audit and allow all proper claims made * Received too late for insertion in proper place.-[Reporter. Misc.] Supreme Court, January, 1896. against the said town, as provided by section 165 of chapter 458 of the Laws of 1893. That section makes the fees of magistrates and other officers for services in criminal proceedings tried before a magistrate of the town where the offense is charged to have been committed a charge against said town. All fees, however, of officers and magistrates in the trial of offenses committed in other towns are not chargeable against the town where the action. is tried. It does not appear, in the claim presented by this relator, where the crime was committed, or what, in fact, the crime was; and it cannot be presumed to have been committed in the town of Champlain, so as to form a basis of a claim for services against that town. Chapter 254 of the Laws of 1859 does not appear to have been repealed, and must be taken to govern, so far as the transportation of juvenile delinquents to the house of refuge is concerned; and such charges for transportation, fixed by the supervisors of the county, may be a charge against the county itself, or against the town where the offense was committed. The provisions of section 3 of chapter 497 of the Laws of 1847, while not repealed, apply, I think, only to convicts adjudged to be such in a court of record, and do not apply to juvenile delinquents sentenced by a magistrate or justice of the peace. The more serions objection to the claim of plaintiff arises from the fact that he does not appear to have been, at the time these services were rendered, either a town officer, or a county officer of the county of Clinton. The only information to be obtained upon that point is the affidavit of the relator attached to the said claim, verified on the 22d day of October, 1895, in which the relator and claimant says that he is a resident of the town of Saratoga Springs, in the county of Saratoga, and that he is a deputy sheriff of the county of Clinton. That the sheriff of the county of Clinton has no authority to appoint a deputy residing in any other county, and continuing to reside in any other county, than the county in which the sheriff resides, seems to me too plain to admit of argument. A bare reading of the statutes ought to suffice to carry conviction upon this proposition. Section 15, chapter 5, title 1 of the Revised Statutes, relating to public officers of the state, provides: "The following officers, namely: sheriffs, clerks of counties, coroners, district attorneys, marshals of cities, the clerk of the Court of Oyer and Terminer and General Sessions in New York, Supreme Court, January, 1896. [Vol 16. the registrar and clerk of that city, police justices and assistant justices in that city and their clerks, are so far local as to require the residence of every person holding such office within the county or city in which the duties of his office are required by law to be executed." Section 73 of article 5, chapter 12, of the Revised Statutes, relating to sheriffs, etc., reads: "§ 73. Every sheriff may appoint such and so many deputies as he may think proper, and persons may also be deputed by any sheriff or under sheriff by an instrument in writing to do particular acts." Section 7 of chapter 5, part 1, title 6 of the Revised Statutes, being general provisions applicable to all civil officers of the state, provides: "§ 7. In all cases not otherwise provided for each deputy shall possess the powers and perform the duties attached by law to the office of his principal during a vacancy in such office and during the absence of his principal." Subdivision 4 of section 34 of article 4, chapter 5, of the Revised Statutes, relating to resignations, vacancies, removals, etc., provides as follows: "§ 34. Every office shall become vacant on the happening of either of the following events before the expiration of the term of such office. * * (4) His ceasing to be an inhabitant * of the state, or, if the office be local, of the district, county, town. or city for which he shall have been chosen or appointed, or within which the duties of his office are required to be discharged." That the office of sheriff and that of deputy sheriff are local seems to be fixed by statute. If it needed any statutory determination to convey the meaning of a "local office," such has already been determined by section 15, hereinbefore referred to. Section 119 of chapter 272 of the Laws of 1892 seems to prohibit the appointment by a sheriff of any person not a citizen and resident of the state of New York, and a resident of the same county as the sheriff or other officer making such appointment, and prohibits all persons from assuming to exercise the functions. of such sheriff who are not so resident of the county in which the sheriff resides. It can hardly be argued, I think, with any degree of force, since the sheriff must, of necessity, under the law, be a resident of the county in which he is sheriff, that he may appoint deputies residing in other counties throughout the |