| Mass. | Jun 21, 1895
The defendant raises a preliminary question of jurisdiction. He contends that the Probate Court has sole jurisdiction, subject to appeal to this court, of the question whether the legacies are subject to a tax under St. 1891, c. 425. He bases this contention on the provisions of § 14 of that act, which are as follows: “The Probate Court having jurisdiction of the settlement of the estate of the decedent, shall have jurisdiction to hear and determine all questions in relation to said tax that may arise affecting any devise, legacy, or inheritance under this act, subject to appeal as in other cases, and the Treasurer of the Commonwealth shall represent the interests of the Commonwealth in any such proceedings.” We do not so construe the statute. By Pub. Sts. c. 136, § 19, it is provided that “ every legatee may recover his legacy in an action at common law.” There is nothing in St. 1891, c. 425, which expressly or by implication repeals that provision. The only effect of § 14 is to confer upon the Probate Court in which the estate of a decedent is in the process of settlement jurisdiction to hear and determine any question that may arise relating to any devise, legacy, or inheritance under the act, but does not take away the right of the legatee to sue at common law in the Superior Court, and have the question heard and determined there whether the legacy is subject to a tax. The executor had an opportunity to try the question in the Probate Court, and, not having availed himself of that opportunity, he cannot now object that the Superior Court had no jurisdiction, or insist that its judgment will not avail him in the settlement of his accounts in the Probate Court.
Upon the petition of the executor a citation was issued by the Superior Court summoning in the Treasurer of the Commonwealth, after a hearing upon and overruling of the defendant’s demurrer. The Treasurer at first objected to being made a party, but afterwards withdrew his objection, and a hearing was had on the petition, and it was dismissed. No appeal or exception was taken to the overruling of the demurrer or dismissing of the petition, and the question is not therefore before us whether the ruling denying the petition was correct. It is said, and it appears inferentially perhaps from the papers, that the time has gone by within which the Treasurer could bring suit to recover
By St. 1891, c. 425, § 1, all property within the Commonwealth which shall pass by will or by .intestate succession, or by deed, grant, sale, or gift to take effect after the death of the grantor, “ other than to or for the use of the father, mother, husband, wife, lineal descendant, brother, sister, adopted child, the lineal descendant of any adopted child, the wife or widow of a son or the husband of a daughter of a decedent, or to or for charitable, educational, or religious societies or institutions, the property of which is exempt by law from taxation, shall be subject to a tax of five per centum of its value, for the use of the Commonwealth.” By the will in question the testator gave to the town of Essex, first, “ twenty thousand dollars for the erection of a town hall and library for the use of its inhabitants ” ; then by a subsequent provision he gave “ the further sum of twenty thousand dollars, in trust to invest and keep invested in some safe security, the income whereof shall annually be expended by the officers of said town for the purchase' of books for said library for the free use of its inhabitants.” The two provisions taken together contemplate the establishment and maintenance by the town, with the sums thus bequeathed, of a free public library for the use of the inhabitants of the town, and the erection of a library building and town hall. We think that the library thus established may fairly be called an educational or charitable institution, and that the legacies being given to the town for it come within the exemption of the statute, and are not subject to the tax. Drury v. Natick, 10 Allen, 169. Williston Seminary v. County Commissioners, 147 Mass. 427" court="Mass." date_filed="1888-10-18" href="https://app.midpage.ai/document/williston-seminary-v-county-commissioners-6422872?utm_source=webapp" opinion_id="6422872">147 Mass. 427.
Exceptions overruled.