234 Mass. 403 | Mass. | 1920
By a contract in writing, Elias Richardson and Helen M. Richardson, his wife, agreed to provide suitable maintenance for Mary A. Christie during her life and she agreed in consideration thereof to pay them $300 in cash and to make a will devising her house to them “in fee simple.” She paid them the money and made a will containing such a devise. After the death of Mrs. Christie the Richardsons brought a bill in equity against Josiah F. Lane, executor of her will, to compel him to pay off a mortgage, to which the property was subject and on which $600 was unpaid. It was decided by this court that the Richardsons were entitled to the real estate free from the mortgage thereon. Richardson v. Lane, 226 Mass. 224.
The tax commissioner of the Commonwealth has assessed an inheritance tax of $160 on the devised property, and this amount with interest thereon still remains unpaid. The executor petitioned the Probate Court for authority to sell said real estate for the payment of the tax. On the other hand the Richardsons brought a petition to compel the executor to pay the inheritance tax out of the assets of Mrs. Christie’s estate. The two cases were tried in the Probate Court; on appeal they came before a single justice of this court on an agreed statement of facts and by him were reserved for the determination of the full court.
For the reasons stated in the similar case of Clarke v. Treasurer & Receiver General, 226 Mass. 301, it is plain that the property passed to the Richardsons by reason of the will, and that the devise is subject to an inheritance tax under St. 1909, c. 490, Part IV, § 1, as amended by St. 1912, c. 678, § 1. The "question, whether the tax should be paid by the Richardsons or by the estate of Mrs. Christie, may be answered by what was said in the Clarke case:
These two questions, — whether an inheritance tax is payable, and by whom, — are the only ones involved in the case of Richardson v. Lane. The additional questions raised by the Richardsons in the suit brought against them by the executor may be disposed of briefly. The fact that the executor has not paid the tax is not conclusive of the right to maintain his petition. Ordinarily the Treasurer and Receiver General looks primarily to executors, administrators or trustees for the payment of legacy and succession taxes. St. 1909, c. 490, Part IV, §§ 4,9, 10, as amended. But here the property is held by the devisees, not by the executor. It is expressly provided by § 9: “An executor or administrator shall collect taxes due upon land which is subject to tax under the provisions hereof from the heirs or devisees entitled- thereto, and he may be authorized to sell said land, according to the provisions of section twelve, if they refuse or neglect to pay said tax.” Said § 12 reads: “The Probate Court may authorize executors, administrators and trustees to sell the real estate of a decedent for the payment of said tax in the same manner as it may authorize them to sell real estate for the payment of debts.” It seems to us that the petition of the executor was sufficient in form. The statute does not require that the proceedings should be identical in all respects with those required in selling real estate for the payment of debts. Many of the particulars essential to a sale for debts are plainly inapplicable here; such as statements with reference to the insufficiency of personal property in the estate, and the necessity of selling the whole property where a partial sale would injure the residue. Finally, while the Treasurer and Receiver General might have been made a party (see § 21), he has not sought to intervene, and we find no reversible error in the failure to join him as a party. The assessment of the tax commissioner has been made (under § 19), and the time for appeal therefrom has expired. The Common
In each of the cases the decree of the Probate Court must be affirmed; and it is
So ordered.
