Callahan v. Woodbridge

• Decision Date: 31 August 1898
• Parties: CALLAHAN v. WOODBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 595

51 N.E. 176

CALLAHAN v. WOODBRIDGE.

Supreme Judicial Court of Massachusetts, Suffolk.

August 31, 1898

COUNSEL

F.G. Cook, for appellant.

H.M Knowlton, Atty. Gen., and F.T. Hammond, Asst. Atty. Gen., for appellee.

OPINION

KNOWLTON J.

This is a petition to the probate court by the executor of a foreign will proved in this commonwealth for instructions upon the question whether he is liable to pay a tax on a collateral legacy or succession, under St.1891, c 425. Section 1 of this chapter is in part as follows "All property within the jurisdiction of the commonwealth, and any interest therein, whether belonging to inhabitants of the commonwealth or not, and whether tangible or intangible, which shall pass by will or by the laws of the commonwealth regulating intestate succession *** to any person, in trust or otherwise, otherwise than to or for the use of the father, mother, husband, wife, lineal descendant, brother, sister, adopted child, the lineal descendant of any adopted child, wife or widow of a son, or the husband of a daughter of a decedent, *** shall be subject to a tax of five per centum of its value for the use of the commonwealth, *** provided, however, that no estate shall be subject to the provisions of this act unless the value of the same, after the payment of all debts, shall exceed the sum of ten thousand dollars."

The appellant raises the preliminary question whether the probate court has jurisdiction over a case of this kind. We are of opinion that it has. Section 14 of this chapter expressly provides that "the probate court having jurisdiction of the settlement of the estate of the decedent, shall have jurisdiction to hear and determine all questions in relation to said tax that may arise affecting any devise, legacy, or an inheritance under this tax," etc. The decedent was a nonresident, and these proceedings relate only to the property found in this commonwealth. So far as this property is concerned, the probate court has jurisdiction of the settlement of the estate of the decedent. Pub.St. c. 156, § 2; Id. c. 127, §§ 15-17; Id. c. 138, §§ 1, 2. Under the express provisions of the section last cited, it may regulate the settlement of the estate, not only in regard to the collection of assets and the payment of debts, but it may afterwards make final distribution of the property, or pay it over according to the will, or may, in its discretion, cause it to be transmitted to the executor or administrator, if any, in any state or country where the deceased had his domicile. Welch v. Adams, 152 Mass. 74, 25 N.E. 34. The question as to the liability to pay a tax is a question affecting a devise, legacy, or inheritance, under the act; for, if the tax is paid, the devise, legacy, or inheritance will be diminished by the payment. It seems clear that the case is within St.1891, c. 425, § 14, and we have no occasion to inquire whether the probate court has jurisdiction under other statutes. Essex v. Brooks, 164 Mass. 79, 41 N.E. 119. See St.1891, c. 415; Swasey v. Jaques, 144 Mass. 135, 10 N.E. 758.

The constitutional authority of the legislature to lay an excise tax upon the privilege of succession to property after the death of the former owner of it was established by this court in Minot v. Winthrop, 162 Mass. 113, 38 N.E. 512, and is generally recognized by courts elsewhere. Attorney General v. Bouwens, 4 Mees. & W. 171; Stern v. Reg. [1896] 1 Q.B. 211; Thompson v. Advocate General, 12 Clark & F. 1; State v. Dalrymple, 70 Md. 294, 17 A. 82; In re Romaine, 127 N.Y. 80, 27 N.E. 759; In re Swift, 137 N.Y. 77-84, 32 N.E. 1096; Orcutt's Appeal, 97 Pa.St. 179; Small's Estate, 151 Pa.St. 1, 25 A. 23; Alvany v. Powell, 55 N.C. 51. The legal right of the legislature to make such a provision in regard to the property of a nonresident owner rests upon the fact that the property is within the state, and subject to its jurisdiction. This power is as large in reference to the property of a nonresident decedent as to that of the inhabitants of the commonwealth. It covers the property within the jurisdiction. A ground for its exercise is that the property has the protection of our laws, and that our laws are invoked for the administration of it when a change of ownership is to be effected. In the statute before us the succession to property of nonresidents is expressly taxed as if the property belonged to inhabitants of the commonwealth. The language, "which shall pass by will or by the laws of the commonwealth regulating intestate succession," taken in connection with the clauses immediately preceding it, applies to foreign wills, and to property that passes under the statute of this commonwealth which regulates the succession to the property of a nonresident owner after his death, and declares that it shall "be disposed of according to the laws of the state or country of which he was an inhabitant." Pub.St. c. 138, § 1.

Upon the facts before us, there is no doubt that all the property referred to was within the jurisdiction of this commonwealth so as to come within the statute, unless it be the note with mortgage security upon land in Kansas City. There was real estate in Boston, there was a small amount of cash on hand, and the rest of the property was in bonds of railroad companies, of the city of Zanesville, Ohio, of the state of New Hampshire, and of the United States, all of which were completely transferable by delivery, and were commonly bought and sold in the market in this commonwealth. The statute applies to property "tangible or intangible." Without any provision in regard to intangible property, the property above described would be included, because it was all tangible, passing from hand to hand, and was as completely within the jurisdiction of our laws as ordinary...