473 Argument for Pennsylvania. porations incorporated under the laws of other States without deducting the paramount taxes exacted by those other States as a transfer inheritance tax on such shares of stock. The Matter of the Estate of Henry Miller, 184 Calif. 674. The State of Pennsylvania has no power to levy an estate tax on the value of the whole estate without deducting the paramount estate tax exacted by the United States. In the first place, this is inconsistent with the paramount taxing power of the United States. (Discussing the opinion of the court below in this case and in Kirkpatrick's Estate, 275 Pa. 271, in contrast with Knowlton v. Moore, 178 U. S. 41.) A state statute sustainable only upon a theory inconsistent with federal supremacy is invalid per se, even if in a particular case there happens to be enough money to pay the demands of both sovereignties. In the second place, refusal to allow the deduction conflicts with the due process clause of the Fourteenth Amendment, both because of the injustice of the measure of the tax, and because the tax is thereby extended to property withdrawn from the state jurisdiction. Jennie Smith's Estate, 29 Pa. Dist. Rep. 917; Hazard v. Bliss, 43 R. I., dissent 431; Hollis v. Treasurer and Receiver General, 242 Mass. 163; Flaherty v. Hanson, 215 U. S. 515. The State cannot directly impose a tax upon the portion of Mr. Frick's estate which the Federal Government has expropriated. It cannot do this, whether the Federal Government took it in kind or took it in money. Mr. David A. Reed, with whom Messrs. George W. Woodruff, Attorney General of Pennsylvania, and Maynard Teall were on the brief, for defendant in error. The State of domicile of a decedent may include in the measure of its transfer inheritance tax the value of all the personal property of such decedent, including tangibles Argument for Pennsylvania. 268 U.S. situated in other States. It is a fundamental principle that real estate descends pursuant to the law of its situs, without reference to the law of the owner's domicile, and that personal property, whether tangible or intangible, and wheresoever situate, descends pursuant to the law of the owner's domicile. The law of the domicile, therefore, may impose upon the transfer of tangible personalty such conditions by way of taxation or otherwise as it may deem expedient, provided the conditions are not forbidden by constitutional restrictions. It is mere metaphysics to argue whether the transfer is effected by virtue of the law of the situs or the law of the domicile; the fact is that tangible personal property passes according to and to no greater extent than provided by the law of the domicile. Wherever the property may be, the court administering it looks first to the law of the domicile. Bullen v. Wisconsin, 240 U. S. 625. It is admitted that Pennsylvania may not constitutionally impose a tax upon tangible personal property situated outside the State. Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194. But the Pennsylvania tax is not imposed upon any specific property whatever. A sum of money computed upon the value of the estate, such value being determined as of the date of death, is lawfully exacted by the Commonwealth for a privilege created by statute. The tax is an excise upon the privilege of transfer. It is not upon the privilege of receiving—affirmative legislation is not needed to permit acceptance of a gift-but upon the statutory privilege of transferring or transmitting property by will or intestacy. Kirkpatrick's Estate, 275 Pa. 271; Knowlton v. Moore, 178 U. S. 41; United States v. Perkins, 163 U. S. 625; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283. That such transfer inheritance taxes are not property taxes is necessarily implied in the conclusion that United States bonds or other clearly non-taxable securities are 473 Argument for Pennsylvania. properly included in the property upon which the tax is computed. Plummer v. Coler, 178 U. S. 115. Similarly, no one has doubted that the federal inheritance tax should be computed upon the obligations of a State, which the federal government may not tax directly. Since a transfer inheritance tax is not a property tax, and since property which, by reason of its tax-exempt character, is beyond the jurisdiction of the taxing State may be included in the property upon the value of which the tax is computed, it would seem to follow as a corollary that personal property which, by reason of its geographical situation, is beyond the jurisdiction of the taxing State may, under some circumstances, be included. Maxwell v. Bugbee, 250 U. S. 525. Where the situs of the property transferred is outside the taxing State, and the decedent was a non-resident of the taxing State, the transfer is not taxable. Hood's Estate, 21 Pa. 106. Where the property is real estate situated outside the taxing State, the transfer is not taxable. DeWitt's Estate, 266 Pa. 548; Marr's Estate, 240 Pa. 38. Where the property is intangible, the transfer is taxable, since the property passes according to the law of the domiciliary state. Bullen v. Wisconsin, 240 U. S. 625; Blackstone v. Miller, 188 U. S. 189; Greves v. Shaw, 173 Mass. 205; Hostetter's Estate, 267 Pa. 193. Where the property is a chose in action and therefore intangible, but is evidenced by a promissory note and hence has no existence apart from the paper upon which the obligation is written, and the paper has an actual physical situs within the taxing State, there, even though the deceased holder of the note was a non-resident of the taxing State, and the maker is also a non-resident, the note itself is within the control of the taxing State, and the transfer of it may be taxed. Wheeler v. Sohmer, 233 U. S. 434. Where the property is tangible personalty Argument for Pennsylvania. 268 U.S. situated in the taxing State, of which the decedent was a non-resident, since the property is within the jurisdiction and control of the taxing State, the transfer is taxable. Coe v. Erroll, 116 U. S. 517; Blackstone v. Miller, supra. Where the taxing State is also the State of the decedent's domicile, and where the property is tangible personalty having a situs outside the State-the case at bar,—there again the transfer is taxable. Blackstone v. Miller, supra. In Bullen v. Wisconsin, supra, it was held that the domiciliary State could constitutionally impose an inheritance tax on the transfer of bonds kept outside the State. In Carpenter v. Pennsylvania, 17 How. 456, it was held that personal property situated outside the domiciliary State was subject to the inheritance tax thereof. The property expressly described in the report consisted of intangibles. It is not altogether clear whether any tangible property was involved, but the opinion does not suggest that the point would be material. In Hartman's Estate, 70 N. J. Eq. 664, it was squarely held that the transfer of tangible personalty owned by a resident decedent but situated outside the State, was taxable. In Swift's Estate, 137 N. Y. 77, the Court of Appeals of New York, with one dissent, reached the same conclusion. The same decision was reached by the Supreme Court of Washington in Sherwood's Estate, 211 Pac. Rep. 734. In Weaver's Estate, 110 Iowa 328, it was held that the transfer of certain tangibles having a foreign situs was not subject to state inheritance tax, but the decision was based entirely upon the intent of the legislature as expressed in the statute. The law of England is in accord with the authorities above cited. Matter of the Estate of Ewin, 1 Crompton and Jervis, 150; Attorney General v. Napier, 6 Exch. Rep. 216; Re Duchess of Manchester, 81 L. Jour. Rep. N. S., 329 (1912). The fact is that, though the tangible personalty here in question is situated in New York and Massachusetts, 473 Argument for Pennsylvania. it cannot be transferred by inheritance except with reference to the provisions of Pennsylvania law. The theory of plaintiffs in error is that Massachusetts and New York statutes have incorporated Pennsylvania law by reference, thereby changing it to Massachusetts or New York law. Our own theory is that by the comity of States (in this case evidenced by statutes) and the traditions of AngloSaxon jurisprudence, the domiciliary law is given extraterritorial effect in this situation. But whether the correct explanation be the one theory or the other, there can be no doubt of the fact, namely, that the transfer of this property cannot be effected without reference to the provisions of Pennsylvania law. That law is "needed to establish the inheritance." Bullen v. Wisconsin, supra. Plaintiffs in error lay special emphasis on the fact that statutes of New York and Massachusetts provide in express words that the property shall pass according to Pennsylvania law. But can it be doubted that the provisions of Pennsylvania law would be given effect in New York and Massachusetts even in the absence of such statutes? The statutes are merely declaratory of a familiar principle. Plaintiffs in error have cited several cases wherein this Court has held to be invalid state statutes imposing capital stock and franchise taxes on domestic corporations when property having a situs outside the taxing State was included in the property taxed. Those were cases of taxes on property, hence have no application here, because the inheritance transfer tax of Pennsylvania is not a tax on property. Union Refrigerator Case, 199 U. S. at 211. In Looney v. Crane Company, 245 U. S. 178, and Wallace v. Hines, 253 U. S. 66, involving corporation excise taxes held invalid because property outside the taxing State was included in measuring the amount, the complaining corporations were foreign corporations. The cor |