BIENNIAL REPORT OF THE ATTORNEY GENERAL 545 ':'~'. provisions of 790.08(2), F. S., and, if so, is the city of Miami still required to turn over to the state adjutant general all weapons or small arms confiscated through criminal proceedings? It is a well established rule of statutory construction that a later special act of the legislature will control where it is in direct conflict or there is an irreconcilable repugnancy with a prior general law (In Re Adam's Guardianship, Fla., 99 So. 2d 723; Sullivan v. City of Tampa, 101 Fla. 298, 134 So. 211). It is also a well established rule of statutory construction that all acts of the legislature be read in pari materia where at all possible (Ellis v. City of Winter Haven, Fla., 60 So. 2d 620; State ex rei McClure v. Sullivan, Fla., 43 So. 2d 438, Arnold v. State ex rei Mallison, 147 Fla. 324, 2 So. 2d 874; American Bakeries Co. v. Haines City, 131 Fla. 790, 180 So. 524). It is significant to note that Ch. 57-1585 provides in part:... nor shall this Act apply to pistols, revolvers, knives, slingshots, dirks, or other property of like character, the possession of which is made unlawful, but all such unlawful property may be summarily degtroyed by said City. (Emphasis supplied.). It would appear from reading the above quoted provision of the local act applicable to the city of Miami that pistols, etc., should not be disposed of at public sale for storage costs but where it is deemed advisable, in the discretion of appropriate municipal officials, said weapons may be destroyed. Reading the local act in pari materia with the general law it would appear then that all firearms described in the law which are not summarily destroyed by the city should be forwarded to the state adjutant general for appropriate disposition under the terms of 790.08, F. S. Your question is answered accordingly. 060-70-April 5, 1960 PROBATE LAW RESIDENT DECEDENTS-PROBATE IN OTHER STATES INTANGIBLE PERSONAL PROPERTY- 732.26, F. S. To: Ray E. Green, State Comptroller, Tallahassee Should an ad valorem tax assessment against intangible personal property of a person domiciled in this state at the time of death, made after the death of such person, be cancelled where there has been no probate of the last will and testament of such person, in accordance with 732.26, F. S.? This question arises by reason of 732.26, F. S., which, in so far as here material, provides that: The will of any person who heretofore has died a resident of the state or any person who hereafter dies a resident of the state must be admitted to probate in an original proceeding in the state in order to establish its validity. Until so admitted to probate, such will shall be ineffective to convey title to, or the right to possession of real or personal property of the testator; and, until such probate
546 BIENNIAL REPORT OF THE ATTORNEY GENERAL ;, 'I i I.!, ' I' ::! proceedings have been had, no personal representative shall acquire title to, or the right to possession of, any personal property owned by the decedent at the time of his death, notwithstanding that probate or administration proceedings have been had in some other state or country.... The title to personal property wheresoever situate of a person who hereafter dies a resident of the state shall not pass under his will to the legatee or legatees named or designated the1'ein until after such personal property has been administered upon and distributed by the domiciliary personal representative of his estate; provided that this section shall not apply to any property as to which a valid order has been entered that no administration is necessary as to such property or as to the estate of which such property is a part. "In contemplation of law, intangible personal property accompanies the person of the owner and is taxable at his domicile, unless it has acquired a business situs for taxation purposes elsewhere" (State v. Gay, Fla., 35 So. 2d 403, text 408; see also State v. Gay, Fla., 46 So. 2d 165, text 167; 51 Am. Jur. 474, et seq. 463, et seq. 84 C. J. S. 229-238, 116). It has been stated that "a state has the power to tax such property where the owner is domiciled in the state, even though the property has no physical location within the state or may be said to be located elsewhere" (84 C. J. S. 230, 116, notes 23 and 24). Generally, intangible movables "are regarded as situated at the domicile of the owner," (15 C. J. S. 928, 18). "For the purposes of inheritance or succession taxes, it is now settled that intangibles have only one situs, which is at the domicile of the decedent at the time of his death." (15 C. J. S. 929, 18). Under the fiction of law that movables follow the person of the owner irrespective of their actual situs, the general rule is "that the succession to, and the disposition of, personal property in case of intestacy is determined, unless local statutes otherwise provide, by the law of the domicile of the intestate at the time of his death without regard to actual situs of the property or place where the owner died." (15 C. J. S. 925, 18; see also 29A C. J. S. 524, 5). It seems evident that the intangible personal property of the resident decedent, mentioned in the above stated question, had its situs in Florida at the time of the said decedent's death. "As shares of stock are intangible, incorporeal, personal property, for some purposes they can have no fixed situs of their own, but have a situs either at the domicile of the holder, as being in the nature of a chose in action, or at the domicile of the corporation, as representing a part of the corporate property; and it is immaterial, in determining such situs, where the certificate of stock may physically be, since it is merely evidence of title to the stock" (18 C. J. S. 624, 194). "A stock certificate is not stock in the corporation, but is merely evidence of the holder's interest in the corporation, his ownership of the shares represented thereby, and his rights and liabilities resulting from such ownership. It is authentic evidence of the title to the stock." (13 Am. Jur. 397-398, 319). The general rule appears to be well settled that, regardless of the place where the certificate of stock may be, the situs of the stock represented by it is either at the domicile of the owner or the location of the corporation issuing it, and not where the cer-
.J~~ ~:~" I ~ '.~: k'.'.:."."""" '.-;.:< 'i:.,',-...-.. >,;, ~".i'\ t:,. i: : ~ BIENNIAL REPORT OF THE ATTORNEY GENERAL 547 tificates of stock may be (21 Am. Jur. 403, 52; 13 Am. Jur. 300, 174; Annotation in 72 A. L. R. 179-186). "The general rule that original jurisdiction to probate the will of a decedent is possessed by the appropriate court at the testator's domicile (see 57 Am. Jur. 523, 766) is one so firmly rooted as to tend in itself to suggest the question whether a will may be admitted to probate in any other jurisdiction before being proved at the domicile." (Annotation in 119 A. L. R. 491). It appears from this annotation that the authorities are in conflict on this question, where there are assets within the jurisdiction of the court. Some cases seem to hold that personal property brought into a jurisdiction after the death of the testator will not give this jurisdiction (Annotation in 119 A. L. R. 506 and 507). From the above and foregoing, it appears that a share of capital stock in a corporation represents the interest or right of the owner in the management of the corporation, in its surplus profits, 'and, on dissolution, in the balance of its assets after payment of debts. Such a share of corporate stock is a species of incorporeal property, personal in nature, regardless of the nature of the property owned by the corporation, and analogous to, and in the nature of, a chose in action. Such shares of stock are usually held to have their own situs either at the domicile of their owner or the location of the corporation issuing same. For some purposes the situs of the stock has been held to be the domicile of the owner, but for other purposes, such as attachment, garnishment, execution, etc., to be that of the corporation issuing such stock. Section 732.26, F. S., quoted from above, seems to deem the situs of the personal property of decedents, having their domicile in Florida, and especially intangible personal property, to be with the domicile of the decedent at the time of his death. The domicile of the decedent, being in Florida at the time of his death, 732.26, F. S., if constitutional (and this office does not pass upon constitutional questions but leaves them to the courts) seems to be an encumbrance on the title to the property of resident decedents until and unless the estate of the decedent is administered under the laws of this state. Said 732.26 prevents the passing of title of the resident decedent's property, having its situs in this state, unless and until his estate is probated in this state. If the corporate stock of a resident decedent, without regard to the location of the stock certificates, had its situs in Florida at the time of the decedent's death, the said statute declares that title to such stock "shall not pass under his (the decedent's) will to the legatee or legatees named or designated therein until after such personal property has been administered upon and distributed by the domiciliary personal representative of his estate." This is a direct limitation, upon the passing of a resident decedent's personal property, including intangibles having their situs in this state, under his will unless and until that will receives domiciliary probate in the state of domicilethat is, in Florida. This section of the statutes appears to have been designed as a limitation upon the passing of title to property, real and personal, tangible and intangible, under the will of a person domiciled in Florida at the time of his death, until such will shall have been duly probated in Florida. Said 732.26, if constitutional and valid, is, under 1, Art. IV, Fed. Const., entitled to full faith and credit in the courts of every
548 BIENNIAL REPORT OF THE ATTORNEY GENERAL other state of the union. This constitutional provision has been held to be applicable to the legislative acts and statutes of the several states of the union (Annotation in 74 A. L. R. 711, et seq., and 100 A. L. R. 1143, et seq.) ; "hence, if a court of one state refuses to enforce the statute of another state in a case in which it ought to do so and in which the statute gives a right, it thereby denies the full faith and credit demanded by the Federal Constitution, because the statute is a public act of another state. Furthermore, the duty imposed upon courts to give full faith and credit to the constitution of a state as a public act of the state is as obligatory as the similar duty with respect to judicial proceedings of such a state." (12 Am. Jur. 378, 702). "The full faith and credit clause of the Federal Constitution prescribes a rule by which courts, federal and state, are to be guided when a question arises in the progress of a pending suit as to the faith and credit to be given by the court to the public acts, records, and judicial proceedings of a state.other than that in which the court is sitting. Federal courts are bound equally with the state courts to observe the command of the full faith and credit clause where it is applicable. The constitutional provision as to full faith and credit by its terms excludes from the operation among the states a, considerable portion of private international law. It gives full faith and credit, not only to judicial proceedings of every state, but also to its public acts and records." (12 Am. Jur. 379, 705). Although there seems to be some conflict as to the applicable law in the construction of wills, "it may better be said that the rule which refers the will to the law of the state or country in which the testator was domiciled at the time of his death, rather than that of the state or country in which he was domiciled at the time of the execution of the will." (11 Am. Jur. 481, 174). Section 732.26, F. S., prohibited vesture of title under a will, of a decedent residing in this state and having his domicile therein, unless and until such will receives probate in the courts of this state. Florida probate is made a condition to transfer under will of decedents domiciled in this state at the time of their death. In other words, under said 732.26, a bequest of property owned by a resident domiciled in this state at the time of his death, until such will is admitted to probate in this state "such will shall not be effective to convey title to, or the right of possession of, real or personal property of the testator," even to the personal representative himself ( 732.26, F. S.). It may well be argued that under said 732.26, the will, in order to be valid as to intangible personal property, having its situs in Florida by reason of the domicile of the testator being in this state, must not only be executed and witnessed as required by the statutes, but must also be probated in Florida in order to give it validity as a will. This rule seems to be applicable only to property having its situs in this state. Intangibles, including corporate stock, have their situs, for purposes of ownership, at the domicile of their owner. Section 732.26 appears to be applicable to intangible personal property, including stocks and bonds, owned by a decedent domiciled in this state at the time of his death, and on its face invalidates the will as a transfer instrument unless and until probated in this state, as to such property having a situs in this state. Until the will is probated in this state, the property vests otherwise than in the personal representative.
BIENNIAL REPORT OF THE ATTORNEY GENERAL 549 1 '. u " 0' e. n ~ s t Section 732.26, F. S., if constitutional and valid (which question this office leaves to the courts), operates upon the will as a. transfer document, and invalidates the will as such unless and until probated in Florida, and is binding upon courts in other states and should be followed there, under the requirements of the full faith and credit clause of the federal constitution. Therefore, you are advised to refrain from canceling such a tax assessment unless and until the above 732.26 is construed by some court of competent jurisdiction. 060-71-April 5, 1960 SCHOOL CODE PURCHASES BY BOARD-EFFECTS OF PROVISO ON LOW BID- 237.02(2), F. S. To: Thomas D. Bailey, State Superintendent of Public Instruct,ion, Tallahassee Can a school board refuse to award a bid to the low bidder for the purchase of goods and merchandise payable by the 10th of the month following delivery and receipt of the merchandise, where there is attached to the low bid the proviso that upon failure to pay the purchase price by the 10th of the month following receipt of the merchandise there is to be added to the low bid purchase price a service charge of 1% per month of the unpaid balance of the purchase price? Section 237.02 (2), F. S., provides: (2) BIDS.-.Bids shall be requested from three or more sources by the county board for any authorized purchase costing more than three hundred dollars. The county board shall have the authority to reject any or all bids and request new bids. In the acceptance of bids, the county board shall accept the lowest and best bid. This act authorizes the board to exercise its discretion in determining which bid is "lowest and best." In my opinion if the board should determine that the proviso inserted in the bid requiring a penalty for failure to pay by the 10th of the month following receipt of the goods is an unreasonable restriction or would work an undue hardship on the board, it could properly act within its discretion in rejecting the bid. Your question is therefore answered in the affirmative. 060-72-April 5, 1960 STATE COMPTROLLER DUTIES, POWERS AND AUTHORITY AS PREAUDITOR- 23, ART. IV, STATE CONST.; 17.03, 17.05,17.06, 122.061,27.14 AND 27.15, F. S. To:. Ray E. Green, State Comptroller, Tallahassee What are the powers, duties, authority and obligations of the state comptroller, under 23, Art. IV, State Const., when auditing claims of officers and employees of the state and its agencies for refunds of travel and