New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1913-07-01
ESTATE TAXED ONCE
MUST PAY HERE AGAIN
Surrogate Denies Relief to Ex-
eCutor of Mrs. Josephine
PenfOld'S viii.
DISCUSSES THEORY OF LAW
Fowler Refuses Reductions on
Stocks Which Were Subject to
Payments Under Require
ments of Other States.

Surrogate Fowler denied yesterday the
appeal Of the executor of Mrs. Josephine
Penfold from the tax imposed on the es-
tate by the transfer tax appraiser on
property i'm other states, but transferred
under the will probatcd in New York, Of
which Mrs. Ponfold was a resident when
she died, April g. 1912. She left a large
estate. Of which $4,000 went to charity.
The testatrix held stocks in corporations
Of Utah. Minnesota. Wisconsin and New
Jersey, and each imposed an inheritance
tax upon the succession to property 10
Gated in such state. The executor main
tanned that such amounts should be de
Quoted from the market value Of such
properties by the appraisal for the pur-
posed tax in this state.
Surrogate Fowler discussed at length in
his decision the method Of taxation and
said: But. however indefensible in the
abstract the order fixing Che tax in this
matter may seem, il is in accordance with
positive law and high authorities con-
strung that law, and it must be ar
1rmed"
Discussing the different phases Of tax
alton. Surrogate Fowler says: There are
two theories of taxation which have come
down the ages of organized government
The primary theory is that taxation is an
orderly and equal contribution to the legal
expenses Of government; the other that
taxation is an arbitrary levy BY the SD
preme power Of the state for any purpose
which for the time being seems eXpedient
The primary conception Of theory is con-
sistent with constitution and free govern
ment; the other theory is consistent only
with arbitrary government and tyranny
History shows that tyranny may exist
under popular forms.
This fact was concealed by the trainers
and founders of the great Constitution
which they had sealed with their blood.
The familiar statement of Chief Justice
Marshall, that the power to tax is the
power to destroy. was an unfortunate
sequel to so admirable form Of govern
ment.
If examined critically the statement of
the great Chief Justice will be found to
authorize a perversion of political power
II government is a delegation from the
governed-and free government is always
that-government has no inherent power
To destroy the property of its citizens, eX-
cept i'm time of war and to stay devasta-
ton in time Of peace. The power to de-
Strcy is not the equivalent Of taxing
power That every government is in
vested with the power to levy taxes is a
tluism Of political philosophy 1t is an in
Lerelt necessity. But free government
may tax only pursuant to principles OF
economic justice and of political free
dem" 49,,
The Surrogate ends his decision: ~
credit is unduly alarmed the owner VIII
remove himself TO a state where credit IS
secure. There is no political impeachment
ON Decentralization OF repatriation in this
country Credit will ultimately, therefore.
cOngregate in the sound economic state
and abandon the unsound. Not only is
the last a state of fact but II is also a
fact that no other principle Is better es-
tablished than that excessive or false tax
alton is both inexpedient and in the END
non productive