Collector of Taxes of Lowell v. Slafsky
| Decision Date | 13 June 1955 |
| Citation | 332 Mass. 700,127 N.E.2d 309 |
| Parties | COLLECTOR OF TAXES OF LOWELL v. Sylvia SLAFSKY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Francis K. Monarski, Asst. City Sol., Lowell, for plaintiff.
Joseph Kruger, Boston, Alan J. Dimond, Boston, for defendant.
Before QUA, C. J., and WILKINS, SPALDING and COUNIHAN, JJ.
The plaintiff is the collector of taxes of Lowell. The defendant is the assignee in trust under a voluntary general assignment for the benefit of creditors made by one Gilboard on May 8, 1950. Before that date the city had assessed personal property and excise taxes against Gilboard. The purpose of this bill is to require the defendant to account to the plaintiff and to pay the taxes and interest as a preferred claim.
The assignment from Gilboard to the defendant designates Gilboard as 'party of the first part,' the defendant as 'party of the second part,' and as 'parties of the third part' the 'creditors of said party of the first part who shall assent in writing to the terms of this agreement as hereinafter provided.' Later in the assignment is a provision that 'no creditor shall be deemed a party to this agreement or entitled to the benefit of its provisions who fails to assent in writing to the terms of the same within thirty (30) days from its date,' with a further provision for later assent with the consent in writing of the party of the second part. The bill states that the plaintiff and the city were duly notified of the assignment, but that the plaintiff never assented to it, and it does not appear from the bill that the city ever assented. It is alleged that on August 29, 1950, the plaintiff notified the defendant that the plaintiff did not assent and that he claimed a priority for the taxes.
The purposes of the assignment in trust were stated therein to be to convert the property into cash and to distribute the net proceeds 'in substantial conformity with the laws of said Commonwealth relating to the estates of insolvent debtors, paying debts of said part [party?] of the first part due and owing to the parties of the third part entitled to priority under said laws, in full, should the net proceeds of the trust property be sufficient therefor, otherwise pro rata in the order provided for by the laws of said Commonwealth relating to the estates of insolvent debtors and applying the balance of said proceeds equally and ratably, without preference or priority, to the payment of such debts, obligations and liabilities of the party of the first part to the parties of the third part as are provable against the estate of insolvent debtors under the laws of said Commonwealth, and are not entitled to priority under said laws * * *.' There is also the provision that parties of the third part accept their dividends under the assignment in full payment of all 'debts, claims, demands and causes of action' provable against the estates of insolvent debtors under the laws of the Commonwealth.
In the Superior Court the judge overruled a demurrer to the bill, one ground of which was the failure to state a case. He then stayed further proceedings, and reported the case.
In the case of Boston v. Turner, 201 Mass. 190, 87 N.E. 634, in dealing with a generally similar assignment where, as in the present instance, the parties of the third part were designated as creditors of the assignor, this court held, after careful consideration and the citation of many cases, that a tax is not properly describable as a debt, and that the unit of government or the public officer to whom a tax is payable is not technically denominable as a creditor. The court said, 201 Mass. at page 194, 87 N.E. at page 636, 'The conclusion follows that neither the city of Boston nor its collector was obliged to become a party to the indenture of assignment by signature for the reason that its terms descriptive of parties did not properly include either.' For the same reason a similar conclusion seems required in the case before us. Neither the city nor the plaintiff was a 'creditor' within the description of parties of the third part in the instrument of assignment. And it seems to follow that neither could become a party to the assignment.
But it does not necessarily follow that the plaintiff cannot maintain his bill. In Boston v. Turner the court held that, although the collector was not a creditor, and not a party to the assignment, there were provisions in the assignment that indicated an intention...
To continue reading
Request your trial
-
MacPherson v. Boston Edison Co.
...paragraphs. They cannot be sustained merely because particular paragraphs are vague and argumentative. Collector of Taxes of Lowell v. Slafsky, 332 Mass. 700, 704, 127 N.E.2d 309; State Realty Co. of Boston, Inc., v. MacNeil Bros. Co., 334 Mass. 294, 298. The demurrers must be overruled if ......
-
State Realty Co. of Boston v. MacNeil Bros. Co.
... ... Baker v. Paeff, 318 Mass. 366, 367-368, 61 N.E.2d 650; Collector of Taxes of Lowell v. Slafsky, 332 Mass. 700, 704, 127 N.E.2d 309 ... ...
-
Stevens v. Loomis
...rules, Massachusetts, as a matter of substantive law, see, for example, Chase v. Chase, 84 Mass. 101 and Collector of Taxes v. Slafsky, 332 Mass. 700, 704, 127 N.E.2d 309, recognizes the doctrine, universally accepted, that "any one or more of the beneficiaries of a trust can maintain a sui......
-
Weaver v. Wood
...only a named beneficiary, or one suing on his or her behalf, can maintain an action to enforce a trust. Collector of Taxes of Lowell v. Slafsky, 332 Mass. 700, 127 N.E.2d 309 (1955); 3 A.W. Scott & W.F. Fratcher, Trusts §§ 200, 209 (4th ed.1988). When a trust is charitable, and is created n......