219 Mass. 520 | Mass. | 1914
This case is governed by Carleton v. Ashburnham, 102 Mass. 348. In that case the plaintiff sued to recover the amount of a tax assessed to her as the administratrix of the estate of her deceased husband. Before the making of the assessment there had been an informal settlement and distribution of the estate, by an amicable arrangement of all the parties interested therein, of which the assessors had had notice. The statute then in force (Gen. Sts. c. 11, § 12, cl. 7) provided that after the appointment of an executor or administrator the personal estate of a deceased person should be assessed to such executor or administrator until he should give notice to the assessors that the estate had been distributed and paid over to the parties interested therein. It was held that there need not be a formal settlement and decree in the Probate Court, and that the property could not be assessed to the plaintiff after she in fact had properly distributed and paid it over, and had given notice thereof to the assessors, although no accounting had been made and no decree had been entered in the Probate Court. This construction of the statute was in accordance with the statement of its object and reasons made by the court in Hardy v. Yarmouth, 6 Allen, 277, 281.
The statute afterwards was amended (St. 1878, c. 189, § 2; Pub. Sts. c. 11, § 20, cl. 7; R. L. c. 12, § 23, cl. 7; St. 1909, c. 490, Part I, § 23, cl. 7) by adding the requirement that the notice to the assessors should state the name, residence, and the amount paid to the several parties interested in the estate who are inhabitants of the Commonwealth. See White v. Mott, 182 Mass. 195. The subsequent re-enactment of the statute as thus amended in three successive codifications of our tax laws, after the decision in Carleton v. Ashburnham, ubi supra, goes far to show a legislative adoption of the rule there laid down, as was pointed out in White v. Mott, ubi supra. The same doctrine has been stated again in our decisions. In Blackie v. Boston, 208 Mass. 188, 189, it was said that if executors have distributed the property or any part of it, “they can protect themselves and the éstate by bringing in a list as required by the R. L. c. 12, § 41, or by showing a distribution under the R. L. c. 12, § 23, cl. 7, which sections with slight changes are re-enacted in St. 1909, c. 490, Part I, §§ 41,
In the cases chiefly relied on by the defendant, the transfers had been made by executors to themselves acting in another fiduciary capacity. In such cases a decree of the Probate Court is required to complete the transfer. Hall v. Cushing, 9 Pick. 395, 409. Newcomb v. Williams, 9 Met. 525, 534. Conkey v. Dickinson, 13 Met. 51. Hardy v. Yarmouth, 6 Allen, 277. Seam v. Nahant, 215 Mass. 329. The distinction between the two classes of cases is pointed out in Welch v. Boston, 211 Mass. 178, 183.
The notice given by the plaintiff to the assessors contained all the information required by St. 1909, c. 490, Part I, § 23, cl. 7. Its statements of fact were correct. It follows from the decisions already referred to that the assessors, after they had received this notice, had no jurisdiction to make the assessment in question upon the plaintiff. There is nothing inconsistent with this conclusion in Vaughan v. Street Commissioners, 154 Mass. 143; Batchelder v. Cambridge, 176 Mass. 384; or Sears v. Nahant, 215 Mass. 329.
This is not a case where the plaintiff’s only remedy is by asking for an abatement, for the assessment was void. Whether he might have maintained also a petition for the abatement of the whole tax (Milford Water Co. v. Hopkinton, 192 Mass. 491, 498; Milford v. County Commissioners, 213 Mass. 162) need not be determined. He was personally liable for the tax; Dallinger v. Davis, 149 Mass. 62; St. 1909, c. 490, Part II, § 34; and he paid it under protest to avoid an arrest of his body. He can maintain an action for its recovery. Boston & Sandwich Glass Co. v. Boston, 4 Met. 181. Loud v. Charlestown, 99 Mass. 208. Wheatland v. Boston, 202 Mass. 258, 260.
In accordance with the terms of the report, judgment must be entered for the plaintiff in the sum of $325.70 with interest from January 23, 1913.
So ordered.
