241 Mass. 96 | Mass. | 1922
We assume that before laying the assessment the assessors complied with the requirements of St. 1909, c. 490, Part I, § 41, by seasonably giving notice “to all persons, firms and corporations, domestic or foreign, subject to taxation” in the town to bring in to the assessors "before a date therein specified, in case of residents a true list of all their polls and personal estate” in that town "not exempt from taxation.” The defendant’s testator, a resident of the town who died on May 15, 1916, made no return of his taxable property, and was assessed as of April 1,1916, for a poll tax and a tax on real property which after demand was paid by the executrix on October 11,1916. St. 1909, c. 490, Part H, § 34. But, the inventory filed in the court of probate having disclosed certain personal property which had been omitted from the annual assessment, the assessors, acting under St. 1909, c. 490, Part I, § 85, as amended by St. 1911, c. 89, levied on December 20, 1916, a tax on this property, to recover the amount of which this action is brought. The testator doubtless was liable to be taxed for the money on deposit, and on the jewelry, although his interest
The defendant having been duly appointed executrix July 15, 1916, and having qualified and given bond as required by statute, the remaining defence rests on R. L. c. 141, § 9, as amended by St. 1914, c. 699, § 3, which provides that an executor or administrator after giving due notice of his appointment shall not be held to answer to an action by a creditor of the deceased which is not commenced within one year from the time of his giving bond for the performance of his trust. It "is obligatory upon the executor and administrator as well as upon the creditor; and cannot be waived.” Ames v. Jackson, 115 Mass. 508, 510. The tax remaining unpaid for three months after it had been committed, the plaintiff had the remedial rights of a creditor, and this limitation is as applicable to him as to other creditors of the testator. Rich v. Tuckerman, 121 Mass. 122. Dallinger v. Davis, 149 Mass. 62. Boston v. Turner, 201 Mass. 190, 193. That this defence is not pleaded is of no consequence. If a case is submitted on agreed facts all questions of pleading are waived, and it is to be decided on the merits as if the questions had been presented by proper pleadings. Ames v. Jackson, 115 Mass. 508, 510. Fay v. Duggan, 135 Mass. 242. The action, not having been begun within one year after the bond had been given, is therefore barred. The
So ordered.