Brown v. McLoughlin

• Decision Date: 05 June 1934
• Citation: 287 Mass. 15,190 N.E. 795
• Parties: BROWN et al. v. McLOUGHLIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 15

190 N.E. 795

BROWN et al.

v.McLOUGHLIN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 5, 1934.

Appeal from Probate Court, Suffolk County; A. W. Dolan, Judge.

Account by Charles J. Brown and others, administrators with the will annexed of the estate of Jane E. McLoughlin, opposed by Margaret McLoughlin and others. From a decree of the probate court allowing the substituted first account, opponents appeal.

Affirmed.

G. W. Howe, of Boston, for appellants.

J. Lewiton, of Dorchester, for appellees.

LUMMUS, Justice.

The accountants are the administrators with the will annexed of the estate of Jane E. McLoughlin. The will gave the residue of the estate to one Gaffney, who was not one of the heirs. Under an agreement of compromise, made August 13, 1930, a contest of the will was withdrawn, the will was proved, and the residue of the estate was to be divided equally between Gaffney and the heirs. The State tax upon the succession by will to the residue of the estate (see G. L. [Ter. Ed.] c. 65) was paid by the accountants out of such residue before dividing it. The judge allowed the account, and the heirs appealed, contending that the whole tax should be charged to Gaffney's share.

Even when a compromise of a contest over the admission of a will to probate has been authorized by a court under the statute (G. L. [Ter. Ed.] c. 204, §§ 15-18), upon the probate of the will the title devolves by force of the will, and then is transferred according to the agreement of compromise. Ellis v. Hunt, 228 Mass. 39, 116 N. E. 956,Copeland v. Wheelwright, 230 Mass. 131, 119 N. E. 667. The tax was properly levied upon the gift by will of the whole residue to Gaffney, and at a rate adapted to his relationship or want of relationship to the testatrix. Baxter v. Treasurer & Receiver General, 209 Mass. 459, 95 N. E. 854. Under the statute, the accountants were to deduct the tax from the ‘property subject to the tax,’ or collect it from the ‘legatee or person entitled to said property,’ or, in the case of real estate, from the ‘heirs or devisees entitled thereto.’ G. L. (Ter. Ed.) c. 65, § 17. The accountants in this case had no right to pay out of the share transferred to the heirs half of the tax thus made collectible from Gaffney, unless the agreement of compromise expressly or impliedly so provided. Prescott v. St. Luke's Hospital of New Bedford, 280 Mass. 229, 231, 182 N. E. 290.

We think it did so provide by implication. The...