Burnham v. Stevens

• Decision Date: 24 May 1912
• Citation: 98 N.E. 603,212 Mass. 165
• Parties: BURNHAM et al. v. STEVENS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

212 Mass. 165

98 N.E. 603

BURNHAM et al. v. STEVENS.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1912

COUNSEL

Roger F. Sturgis, of Boston, for petitioner.

Jas. M Swift, Atty. Gen., and Fred T. Field, Asst. Atty. Gen., for the Commonwealth.

OPINION

MORTON J.

The question in this case is whether the trust estate is liable to a succession tax under the provisions of St. 1909, c. 527 § 8, or of St. 1907, c. 563, codified as part 4, c. 490, St 1909. The probate court held that it was liable to such tax under the provisions of St. 1909, c. 527, § 8, and entered a decree accordingly. The petitioner appealed. The case was reserved by a single justice for this court 'upon the pleadings, decree, claim of appeal therefrom, and objections thereto, and agreed statement of facts.'

We think that the decree of the probate court was right and should be affirmed. The terms of the indenture of trust under which the question arises are so far as material as follows: 'And upon the further trust from and after the death of the said John A. [Burnham] to pay over to his children or grandchildren, if any, in such proportion as he may by will direct, and in the absence of any such will in trust to pay over, transfer and convey all said property and estate to the children of said John A. and to the children of any deceased child of said John A. equally, grandchildren taking the portion that would have fallen to their parent if alive. And if the said John A. leave no children nor grandchildren then in trust to pay over, transfer and convey all said property to the heirs at law of said John A.'

John A. Burnham was the son of the settlor and died November 10, 1910, without having exercised the power. At the time of his death he was a resident of this state. He left three children, amongst whom the trust estate is not to be divided. The indenture of trust was dated October 30, 1869.

The statute is as follows: 'Whenever any person shall exercise a power of appointment derived from any disposition of property made prior to September first, nineteen hundred and seven, such appointment when made shall be deemed to be a disposition of property by the person exercising such power taxable under the provisions of chapter five hundred and sixty-three of the acts of the year nineteen hundred and seven, and of all acts in amendment thereof and in addition thereto, in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power, and had been bequeathed or devised by the donee by will; and whenever any person possessing such a power of appointment so derived shall omit or fail to exercise the same within the time provided therefor, in whole or in part, a disposition of property taxable under the provisions of chapter five hundred and sixty-three of the acts of the year nineteen hundred and seven and all acts in amendment thereof and in addition thereto shall be deemed to take place to the extent of such omission or failure in the same manner as though the persons or corporations thereby becoming entitled to the possession or enjoyment of the property to which such power related had succeeded thereto by a will of the donee of the power failing to exercise such power, taking effect at the time...