Bartlett v. Tufts

• Decision Date: 07 March 1922
• Citation: 241 Mass. 96
• Parties: HAROLD C. BARTLETT v. MARGARET K. TUFTS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 96

HAROLD C. BARTLETT v. MARGARET K. TUFTS.

Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1922

November 28, 1921.

Present: RUGG, C.

J., BRALEY, CROSBYCARROLL, & JENNEY, JJ.

Limitations Statute of.Tax, Collection from executor.Executor and Administrator.Pleading, Civil, Answer.Practice, Civil Statement of agreed facts, Waiver of defect in pleading.

After a tax, levied under St. 1909, c. 490, Part I, Section 85, as amended bySt 1911, c. 89, in December, 1916, after the death testate in May of the owner of the property, upon property which had been omitted from the annual assessment, had remained unpaid for three months following its commitment to the collector for collection, the collector had the remedial rights of a creditor of the executor under Part II, Section 34, of the statute, and, upon his failing to institute the proceedings provided by Section 33 for more than one year after the executor of the will of the decedent, who had given due notice of his appointment, had qualified by the giving and approval of his bond as executor, the action was barred by R.L.c. 141, Section 9, as amended by St. 1914, c. 699, Section 3.

Where an action by a collector of taxes against the executor of a will for the collection of a tax assessed upon the estate of the testator as of a date previous to his death is submitted for determination by a judge without a jury upon a statement of agreed facts, the defence of the special statute of limitations is open to the defendant although it is not set up in the answer, all questions of pleading being waived by such submission.

CONTRACT against the executor of the will of Henry P. Tufts, late of Winthrop, individually, for the collection of a tax assessed for the year 1916.Writ dated April 4, 1919.

In the Superior Court, the action was heard by Morton, J., without a jury, upon a "statement of agreed facts."Material facts so agreed to are described in the opinion.The judge found for the plaintiff on the statement of agreed facts and assessed damages in the sum of $477.90, and judgment was entered accordingly.The defendant appealed.

R. E. Evans, for the defendant.L. C. Guptill, for the plaintiff.

BRALEY, J.We assume that before laying the assessment the assessors complied with the requirements of St. 1909, c. 490, Part I Section 41, by seasonably giving notice "to all persons firms and corporations, domestic or foreign, subject to taxation" in the town to bring in to the assessors "before a date therein specified, in case of residents a true list of all their polls and personal estate" in that town "not exempt from taxation."The defendant's testator, a resident of the town who died on May 15, 1916, made no return of his taxable property, and was assessed as of April 1, 1916, for a poll tax and a tax on real property which after demand was paid by the executrix on October 11, 1916.St. 1909, c. 490, Part II, Section 34.But, the inventory filed in the court of probate having disclosed certain personal property which had been omitted from the annual assessment, the assessors, acting under St. 1909, c. 490, Part I, Section 85, as amended bySt. 1911, c. 89, levied on December 20, 1916, a tax on this property, to recover the amount of which this action is brought.The testator doubtless was liable to be taxed for the money on deposit, and on the jewelry, although his interest in a partnership outside of, and without a place of business in the town, was not taxable.St. 1909, c. 490, Part I, Section 4, cl. 1;Section 27.The tax however is not to be regarded as a separate tax.It is part of the original tax levied as of April 1, 1916, when the testator was living, the items of which were then unknown to the assessors.Harwood v. North Brookfield,130 Mass. 561 , 565.It was property assessable to Henry P. Tufts and could not lawfully have been assessed to his estate.Noyes v. Hale,137 Mass. 266 . St. 1909, c. 490, Part I, Section 85.It may fairly be assumed on the record that a tax list and warrant were delivered to the plaintiff to collect the tax as first levied, and it is immaterial, after the omitted assessment was imposed, whether the tax was to be collected under that warrant, or whether a new warrant therefor was issued.Noyes v. Hale,137 Mass. 266 . St. 1909, c. 490, Part I, Section 85, as amended bySt. 1911, c. 89.By Section 3 of Part II, the plaintiff was required to send notice to the person assessed, "of the amount of his tax" directed to the street and number of his residence if possible.The notice mailed to the testator after his death as well as the alleged demand on him was a nullity.The notice should have been sent to the executrix.But, under the statute, "An omission to send such notice shall not affect either the validity of a tax or of the proceedings for collecting it."The warrant issued by the plaintiff to a constable of the town who made "various demands" on the defendant, was also of no effect because the collector could not issue such warrant before a lawful demand for payment of the tax had been made on her.St. 1909, c. 490, Part II, Section 32.But the demand of March 18, 1919, made by the plaintiff was sufficient.It is settled that the assessors had jurisdiction to assess a tax on the testator's money deposited in a national bank and on his jewelry, and his failure to file a list of his taxable property would have deprived him of any...