Breare v. Board of Assessors of Peabody

• Decision Date: 09 March 1966
• Citation: 215 N.E.2d 102,350 Mass. 391
• Parties: Miles BREARE v. BOARD OF ASSESSORS OF PEABODY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 102

215 N.E.2d 102

350 Mass. 391

Miles BREARE v. BOARD OF ASSESSORS OF PEABODY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 7, 1966.

Decided March 9, 1966.

Timothy J. O'Keefe, Peabody, for taxpayer.

No argument or brief for Board of Assessors of Peabody.

Bfore WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

CUTTER, Justice.

Breare is over seventy years old. He had his domicil in Massachussetts for ten years prior to January 1, 1964. He owned a camp, garage, and four acres of land (the locus) in Peabody. The locus was assessed as of January 1, 1964, at a valuation of $2,500. The assessed value of all Breare's real property does not exceed $14,000.

We assume (although this is not clear from the record) that Breare's brief correctly states that the tax of $220.50 was assessed to one Skerry, to whom Breare had given a warranty deed of the locus in 1963. This deed in the statutory warranty deed form contained the statement that '(t)he grantor (Breare) reserves the right to occupy the premises with the grantee (Skerry) during the term of his natural life.' Breare's total net income in 1963 was less than $4,000 and his and Skerry's combined net income is less than $5,000.

Breare applied to the Peabody assessors for an abatement of the tax. From their failure to act upon his application he appealed to the county commissioners. The assessors elected to have the case heard by the Appellate Tax Board, which entered a decision for the assessors. Breare appealed.

The question for decision is whether Breare has any interest in the land sufficient to entitle him to the benefit of the tax exemption for certain elderly persons given by G.L. c. 59, § 5, Forty-first, inserted by St.1963, c. 808, § 1. This statute has been quoted in part in KIRBY V. BOARD OF ASSESSORS OF MEDFORD, MASS., 215 N.E.2D 99, 100, FN. 2.^A Additional provisions here relevant are set out in the margin. ¹ See Board of Assessors of Everett v. Formosi, Mass., ^b 212 N.E.2d 210, fn. 1. Breare satisfies all requirements for the exemption, if his interest in the locus may be regarded as '(r)eal property' and if he can be said to have 'owned such real property either individually, jointly, or as a tenant in common, for the preceding five years.'

Breare contends that his reservation by deed (of 'the right to occupy the premises with the grantee during the term of his natural life') gives him a life estate, as tenant in common with Skerry. Whatever Breare's interest may be, its extent, as shown in the deed, is a matter of record. Thus no question whether he has record title is here presented. Cf. the Kirby case. ^c

Breare's intention probably was to reserve the right to occupancy during his own life rather than for the life of Skerry. If by the deed he reserved a freehold estate (see Am. Law of Property, § 1.8), we assume it was a life estate for his own life rather than the 'type of life estate called * * * (an) estate pur autre vie' for the life of Skerry. Somewhat anomalous arrangements in respect of real estate, coterminous with a named life or named lives, have been construed as creating a life estate. See Fuller v. Wilbur, 170 Mass. 506, 507, 49 N.E. 916; Tinkham v. Wind, 319 Mass. 158, 159--160, 65 N.E.2d 14; Restatement: Property (and 1948 Supp.), §§ 107--111, 126, 152; Powell, Real Property, §§ 201--202; Tiffany, Real Property (3d ed.) §§ 25, 50 et seq. See also Judkins v. Judkins, 109 Mass. 181, 182; Allen v. Libbey, 140 Mass. 82, 83--84, 2 N.E. 791; Langlois v. Langlois, 326 Mass. 85, 86--87, 93 N.E.2d 264; Hinckley v. Clarkson, 331 Mass. 453, 454, 120 N.E.2d 285 (personalty); Brunton v. Easthampton Sav. Bank, 336 Mass. 345, 347--348, 145 N.E.2d 696; Schnebly, Power of Life Tenant or Remainderman to Extinguish Other Interests by Judicial Process, 42 Harv.L.Rev. 30, 41 et seq. The intention of the somewhat ambiguous reservation in the deed granting Skerry a fee appears to have been to make Breare a tenant in common...