Dana v. Dana
226 Mass. 297
Mass.
1917
Check Treatment
Rugg, C. J.

Richard H. Dana was the husband of Edith L. Dana, who died testate on July 21, 1915, leaving personal estate in excess of $200,000 and certain real estate. He is the sole residuary legatee and devisee under her will. Her will was admitted to probate. The husband did not file his “election and claim” in the registry of probate for his “tenancy by curtesy” within one year after the date of the approval of the bond of the executor of the will of the testatrix in accordance with St. 1915, c. .134, *299in force at the.date of her decease, amending R. L. c. 132, § 1. He did not file a waiver of the provisions of her will made for him and claim such portion of her estate as he would have taken if she had died intestate, as is permitted by R. L. c. 135, § 16. The tax commissioner has assessed a succession tax on the value of the entire amount of property which has come to Mr. Dana by reason of the decease of his wife. It is contended that this is an erroneous assessment and that no tax can be levied upon that portion of her estate, amounting to upwards of $30,000, to which he was entitled [to use the words of the brief filed in his behalf] “by virtue of his marital rights, or rather upon the part which he took under her will in lieu of the same.”

The question is not raised on this record whether an estate by the curtesy is subject to the succession tax. See In re Starbuck, 137 App. Div. (N. Y.) 866, affirmed in 201 N. Y. 531. There is no estate by the curtesy here because Mr. Dana, having failed to file his election to take that kind of an estate as he might have done under St. 1915, c. 134, is held to have waived such estate. He stands now as if that estate never had existed so far as concerns him. Even if Mrs. Dana had died intestate, the share of her estate taken by her surviving husband, in the absence of the filing of an election under St. 1915, c. 134, would have vested in him by virtue of the laws regulating intestate succession and not otherwise.

The statutory provision made by R. L. c. 140, § 3, for a surviving spouse out of the estate of a deceased husband or wife, is taken as heir and not in way of dower or curtesy. That provision is subject also to the infirmities of an heir’s succession, one of which is that debts take priority, and another that it relates only to property, tat least so far as dower rights are involved, of which the deceased died seised. Lavery v. Egan, 143 Mass. 389. Gray v, Whittemore, 192 Mass. 367, 381. Since Mr. Dana neither elected to take an estate by the curtesy nor waived the provisions for his benefit in the will, the entire interest which he takes in the estate of his deceased wife comes to him by virtue of the will. All the property from her estate to which he is entitled is within the plain words of the succession tax law which imposes the excise on “All property within the jurisdiction of the Commonwealth, corporeal or incorporeal, and any interest therein, belonging to *300inhabitants of the Commonwealth, . . . which shall pass by will, or by the laws regulating intestate succession.” St. 1912, c. 678, § 1. The property in question manifestly passed by will. It did not pass in any other way or manner.

Doubtless under some circumstances it has been held that a legacy to a husband or wife is entitled to a certain priority or preference on the ground that such spouse in a sense is a purchaser by relinquishing the tenancy by the curtesy or dower in exchange for the legacy. Farnum v. Bascom, 122 Mass. 282, 289. Richardson v. Hall, 124 Mass. 228, 234. But these and many like cases have no relevancy to the case at bar because, as has been pointed out, the estate by the curtesy was waived, not by accepting the legacy, but by failing to file his election to take curtesy under St. 1915, c. 134. Whether that principle ever can be pertinent to questions arising under the succession tax law need not be decided. See Clarke v. Treasurer & Receiver General, post, 301.

The only way by which title to the personal property of the testatrix which Mr. Dana is to receive from her estate can be transferred to him is by manual delivery or some instrument executed by the executor of her will. The only way by which he can trace his title to any of her real estate, if any vests in him, is by reference to her will. All that he receives from her estate comes to him wholly through the force and effect of the laws of the Commonwealth permitting the making of wills and providing for the enforcement of their provisions.

So far as there is anything inconsistent with this conclusion in In re Strahan, 93 Neb. 828, or in In re Bullen’s estate, 47 Utah, 96, we are constrained not to follow them.

Since, therefore, all the property which he is to receive passes to him by force of her will, he is liable to the excise. The privilege of receiving the property by will is the “commodity” which is subject to the excise. Minot v. Winthrop, 162 Mass. 113. It is that privilege, and that privilege alone, which he will exercise and enjoy in receiving property from her estate.

Decree affirmed.