171 P. 929 | Mont. | 1918
delivered the opinion of the court.
The respondents, as executors of the last will of S. T. Hauser, deceased, filed their complaint against the county of Lewis and Clark alleging: “That on the first Monday in March, 1915, there was embraced in the assets of and was owned by the said estate of Samuel T. Hauser, deceased, within the county of Lewis and Clark, certain real and personal property of the appraised value of $19,055,” which property was thereafter by said executors listed for assessment and was in due course assessed by the assessor of said county, taxed at $420.27, and the taxes duly paid; that on December 8,1915, “the said assessor of Lewis and Clark county claimed to have discovered certain other additional personal property as belonging to and being part of the assets of said estate of Samuel T. Hauser as omitted property,” which he appraised at $37,505 and added or attempted to add to
To this complaint the county of Lewis and Clark interposed a general demurrer, which was overruled, and the county, declining to plead further, suffered the judgment from which this appeal is taken.
The propositions submitted by the respondents as explanatory
According to this complaint, the property originally assessed was “embraced in,” that is to say, was not all, the assets of the Hauser estate taxable in Lewis and Clark county; the property which the assessor “claimed” to discover was discoverable because it was in fact “a part of the undistributed property of said estate,” and there is no suggestion that it was not taxable as such; this property the executors had not listed, though it was their duty to do so; no complaint is made of the amount levied; the executors took cognizance of the.assessment and paid the tax; they do not claim that any injustice was done to them or their trust, and no wrong is charged save the naked procedural defects above asserted. That such a case differs materially from those cited to support it — wherein the taxing power sought to enforce rights based upon void assessments, or sales of the property to pay void taxes were threatened, or tax titles to property based on void assessments were involved, or statutory proceedings were had before payment to annul assessments, or unjust and excessive assessments without notice were presented — is perfectly clear; and the question is whether such a case presents a right to the return of moneys honestly payable merely because of defects in the mode by which payment was induced.
1. As we understand the purpose of section 2522, Revised Codes, it is: to assure that notice to some interested person shall be given of the charge for taxes upon property still in course of administration, and to provide that payment, when made by heirs, guardians, executors or administrators, as the case may be, shall bind all the parties in interest, in proportion to their interest. The statute is by its terms permissive and directory, rather than mandatory, and in this respect it differs from sections 2510 and 2517, Revised Codes, applied in Birney v. War
2. The same considerations make for avoidance of respondents’ second proposition. The authority for the assessment
The judgment is reversed and the cause remanded, with directions to sustain the demurrer.
Reversed amd remanded.