Mercantile-Safe Deposit and Trust Company, as Trustee under Agreement of Trust with John B. Trevor, Respondent, v. Joseph H. Murphy et al., Constituting the State Tax Commission, Appellants, 15 N.Y.2d 579

Order affirmed, with costs, in a memorandum. Safe Deposit & Trust Co. v. Virginia (280 U. S. 83) does not appear to have been overruled by Guaranty Trust Co. v. Virginia (305 U. S. 19) nor by Graves v. Elliott (307 U. S. 383), in both of which property was taxed which was within or which was being distributed into the taxing State. The lack of power of New York State to tax in this instance stems not from the possibility of double taxation but from the inability of a State to levy taxes beyond its border. Instead of overruling Safe Deposit & Trust Co. v. Virginia, Guaranty Trust Co. v.

Virginia recognized its authority by citing it and stating (305 U. S., p. 23) that it went “ upon the theory that the taxing power of a state is restricted to her confines and may not be exercised in respect of subjects beyond them.” This confirmed rather than refuted the determination in Safe Deposit & Trust Co. that the imposition of a tax in the State in which the beneficiaries of a trust reside, on securities in the possession of the trustee in another State, to the control or possession of which the beneficiaries have no present right, is in violation of the Fourteenth Amendment.

Concur: Chief Judge Desmond and Judges Dye, Field, Van Vooitms, Burke and Scileppi. Taking no part:. Judge Bergan.