171 Mass. 410 | Mass. | 1898
The question in this case is whether George W. Wales, the donee of the power, is to be regarded as the decedent whose property passed by will, or whether Thomas B. Wales, the donor of the power, is to be regarded as the decedent. For it is manifest, we think, from the statute that the property referred to as passing by will is that of the decedent, and that it is the relationship of the parties described in the statute to the decedent which determines whether the property is subject to or exempt from taxation. In a sense, perhaps, one executing a power by will, so as to affect the disposition of property thereby, may be said to have caused its transmission by will, and therefore to be the decedent. It is settled in this Commonwealth that, if one has a general power of appointment and executes it by will, the property so appointed will be regarded as assets of his estate, and his creditors will be entitled to it in preference to his voluntary appointees. Clapp v. Ingraham, 126 Mass. 200. Olney v. Balch, 154 Mass. 318. See Crawford v. Langmaid, ante, 309.
It is also settled that, for the purposes of administration, it is more simple and convenient that the property should be administered by the executor of the will of the party exercising the power. Olney v. Balch, ubi supra. In some other respects the consequences which follow the exercise of the power of .appointment would seem to tend to support the contention of the appellee that the donee of the power should be regarded as the decedent. Hole v. Escott, 4 Myl. & Cr. 187, 193. Marlborough v. Godolphin, 2 Ves. 61, 78, 79. Chitty, J., quoting St. Leonards on Powers, in Rous v. Jackson, 29 Ch. D. 521, 526. Jackson v. Davenport, 20 Johns. 537, 551. 2 Sugd. Powers, (3d Am. ed.) 19.
Nevertheless we think that the donor of the power rather
The result is, that we think that so much of the decree of the Probate Court as decides that the remainder in the undivided half of Wales Wharf, and the proceeds of so much thereof as was sold under leave of court, are liable to a tax under St. 1891, c. 425, should be reversed. In all other respects said decree is affirmed.
So ordered.